Biden v. Texas

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 2
Pages 785–840
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 30, 2022
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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OCTOBER
TERM, 2021
785
Syllabus
BIDEN et al. v. TEXAS et al.
certiorari
to the united states court of appeals for
the fth circuit
No. 21–954. Argued April 26, 2022—Decided June 30, 2022
In January 2019, the Department of Homeland Security began to imple-
ment the Migrant Protection Protocols (MPP). Under MPP, certain
non-Mexican nationals arriving by land from Mexico were returned to
Mexico to await the results of their removal proceedings under section
1229a of the Immigration and Nationality Act (INA). MPP was imple-
mented pursuant to a provision of the INA that applies to aliens “arriv-
ing on land . . . from a foreign territory contiguous to the United States”
and provides that the Secretary of Homeland Security “may return the
alien to that territory pending a proceeding under section 1229a.” 8
U. S. C. § 1225(b)(2)(C). Following a change in Presidential administra-
tions, the Biden administration announced that it would suspend the
program, and on June 1, 2021, the Secretary of Homeland Security is-
sued a memorandum offcially terminating it.
The States of Texas and Missouri (respondents) brought suit in the
Northern District of Texas against the Secretary and others, asserting
that the June 1 Memorandum violated the INA and the Administrative
Procedure Act (APA). The District Court entered judgment for re-
spondents. The court frst concluded that terminating MPP would vio-
late the INA, reasoning that section 1225 of the INA “provides the gov-
ernment two options” with respect to illegal entrants: mandatory
detention pursuant to section 1225(b)(2)(A) or contiguous-territory re-
turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be-
cause the Government was unable to meet its mandatory detention obli-
gations under section 1225(b)(2)(A) due to resource constraints, the
court reasoned, terminating MPP would necessarily lead to the systemic
violation of section 1225 as illegal entrants were released into the
United States. Second, the District Court concluded that the June 1
Memorandum was arbitrary and capricious in violation of the APA.
The District Court vacated the June 1 Memorandum and remanded to
DHS. It also imposed a nationwide injunction ordering the Govern-
ment to “enforce and implement MPP in good faith until such a time as
it has been lawfully rescinded in compliance with the APA and until
such a time as the federal government has suffcient detention capacity
to detain all aliens subject to mandatory detention under [section 1225]

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786 BIDEN
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Syllabus
without releasing any aliens because of a lack of detention resources.”
Id.
, at 857 (emphasis in original).
While the Government's appeal was pending, the Secretary released
the October 29 Memoranda, which again announced the termination of
MPP and explained anew his reasons for doing so. The Government
then moved to vacate the injunction on the ground that the October 29
Memoranda had superseded the June 1 Memorandum. But the Court
of Appeals denied the motion and instead affrmed the District Court's
judgment in full. With respect to the INA question, the Court of Ap-
peals agreed with the District Court's analysis that terminating the pro-
gram would violate the INA, concluding that the return policy was man-
datory so long as illegal entrants were being released into the United
States. The Court of Appeals also held that “[t]he October 29 Memo-
randa did not constitute a new and separately reviewable `fnal agency
action.' ” 20 F. 4th 928, 951.
Held: The Government's rescission of MPP did not violate section 1225 of
the INA, and the October 29 Memoranda constituted fnal agency action.
Pp. 797–814.
(a) Beginning with jurisdiction, the injunction that the District
Court entered in this case violated 8 U. S. C. § 1252(f )(1). See Garland
v. Aleman Gonzalez, 596 U. S. 543, 550. But section 1252(f )(1) does not
deprive this Court of jurisdiction to reach the merits of an appeal even
where a lower court enters a form of relief barred by that provision.
Section 1252(f )(1) withdraws a district court's “jurisdiction or authority”
to grant a particular form of relief. It does not deprive lower courts of
all subject matter jurisdiction over claims brought under sections 1221
through 1232 of the INA.
The text of the provision makes that clear. Section 1252(f )(1) de-
prives courts of the power to issue a specifc category of remedies: those
that “enjoin or restrain the operation of ” the relevant sections of the
statute. And Congress included that language in a provision whose
title—“Limit on injunctive relief ”—makes clear the narrowness of its
scope. Moreover, the provision contains a parenthetical that explicitly
preserves this Court's power to enter injunctive relief. If section
1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudi-
cate any non-individual claims under sections 1221 through 1232, no such
claims could ever arrive at this Court, rendering the specifc carveout
for Supreme Court injunctive relief nugatory.
Statutory structure likewise confrms this conclusion. Elsewhere in
section 1252, where Congress intended to deny subject matter jurisdic-
tion over a particular class of claims, it did so unambiguously. See, e. g.,
§ 1252(a)(2) (entitled “Matters not subject to judicial review”). Finally,

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787
Syllabus
this Court previously encountered a virtually identical situation in Niel-
sen
v. Preap, 586 U. S. –––, and proceeded to reach the merits of the
suit notwithstanding the District Court's apparent violation of section
1252(f )(1). Pp. 797–801.
(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the
case of an alien . . . who is arriving on land . . . from a foreign territory
contiguous to the United States, the [Secretary] may return the alien
to that territory pending a proceeding under section 1229a.” Section
1225(b)(2)(C) plainly confers a discretionary authority to return aliens
to Mexico. This Court has “repeatedly observed” that “the word `may'
clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S.
–––, –––.
Respondents and the Court of Appeals concede that point, but urge
an inference from the statutory structure: because section 1225(b)(2)(A)
makes detention mandatory, they argue, the otherwise-discretionary re-
turn authority in section 1225(b)(2)(C) becomes mandatory when the
Secretary violates that mandate. The problem is that the statute does
not say anything like that. The statute says “may.” If Congress had
intended section 1225(b)(2)(C) to operate as a mandatory cure of any
noncompliance with the Government's detention obligations, it would
not have conveyed that intention through an unspoken inference in con-
fict with the unambiguous, express term “may.” The contiguous-
territory return authority in section 1225(b)(2)(C) is discretionary—and
remai ns discreti onary notw ithst andi ng any v i olati on of sec ti on
1225(b)(2)(A).
The historical context in which section 1225(b)(2)(C) was adopted con-
frms the plain import of its text. Section 1225(b)(2)(C) was added to
the statute more than 90 years after the “shall be detained” language
that appears in section 1225(b)(2)(A). And the provision was enacted
in response to a BIA decision that had questioned the legality of the
contiguous-territory return practice. Moreover, since its enactment,
every Presidential administration has interpreted section 1225(b)(2)(C)
as purely discretionary, notwithstanding the consistent shortfall of funds
to comply with section 1225(b)(2)(A).
The foreign affairs consequences of mandating the exercise of
contiguous-territory return likewise confrm that the Court of Appeals
erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a sig-
nifcant burden upon the Executive's ability to conduct diplomatic rela-
tions with Mexico, one that Congress likely did not intend section
1225(b)(2)(C) to impose. And fnally, the availability of parole as an
alternative means of processing applicants for admission, see 8 U. S. C.
§ 1182(d)(5)(A), additionally makes clear that the Court of Appeals erred

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in holding that the INA required the Government to continue imple-
menti
ng MPP. Pp. 801–807.
(c) The Court of Appeals also erred in holding that “[t]he October
29 Memoranda did not constitute a new and separately reviewable `fnal
agency action.' ” 20 F. 4th, at 951. Once the District Court vacated
the June 1 Memorandum and remanded to DHS for further consider-
ation, DHS had two options: elaborate on its original reasons for taking
action or “ `deal with the problem afresh' by taking new agency action.”
Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S.
–––, –––. The Secretary selected the second option from Regents: He
accepted the District Court's vacatur and dealt with the problem afresh.
The October 29 Memoranda were therefore fnal agency action for the
same reasons that the June 1 Memorandum was fnal agency action:
Both “mark[ed] the `consummation' of the agency's decisionmaking proc-
ess” and resulted in “rights and obligations [being] determined.” Ben-
nett v. Spear, 520 U. S. 154, 178.
The various rationales offered by respondents and the Court of Ap-
peals in support of the contrary conclusion lack merit. First, the Court
of Appeals erred to the extent it understood itself to be reviewing an
abstract decision apart from the specifc agency actions contained in the
June 1 Memorandum and October 29 Memoranda. Second, and relat-
edly, the October 29 Memoranda were not a mere post hoc rationaliza-
tion of the June 1 Memorandum. The prohibition on post hoc rational-
ization applies only when the agency proceeds by the frst option from
Regents. Here, the Secretary chose the second option from Regents
and “issue[d] a new rescission bolstered by new reasons absent from
the [June 1] Memorandum.” 591 U. S., at –––. Having returned to the
drawing table, the Secretary was not subject to the charge of post hoc
rationalization.
Third, respondents invoke Department of Commerce v. New York, 588
U. S. –––. But nothing in this record suggests a “signifcant mismatch
between the decision the Secretary made and the rationale he pro-
vided.” Id., at –––. Relatedly, the Court of Appeals charged that the
Secretary failed to proceed with a suffciently open mind. But this
Court has previously rejected criticisms of agency closemindedness
based on an identity between proposed and fnal agency action. See
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,
591 U. S. –––, –––. Finally, the Court of Appeals erred to the extent it
viewed the Government's decision to appeal the District Court's injunc-
tion as relevant to the question of the October 29 Memoranda's status
as fnal agency action. Nothing prevents an agency from undertaking
new agency action while simultaneously appealing an adverse judgment
against its original action. Pp. 807–814.

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Syllabus
20 F. 4th 928, reversed and remanded.
Roberts
, C. J., delivered the opinion of the Court, in which Breyer,
Sotomayor, Kagan, and Kavanaugh, JJ., joined. Kavanaugh, J., fled
a concurring opinion, post, p. 814. Alito, J., fled a dissenting opinion, in
which Thomas and Gorsuch, JJ., joined, post, p. 816. Barrett, J., fled
a dissenting opinion, in which Thomas, Alito, and Gorsuch, JJ., joined,
as to all but the frst sentence, post, p. 835.
Solicitor General Prelogar argued the cause for petition-
ers. With her on the brief were Principal Deputy Assist-
ant Attorney General Boynton, Deputy Solicitor General
Gannon, Michael R. Huston, Austin L. Raynor, Erez Reu-
veni, and Brian Ward.
Judd E. Stone II, Solicitor General of Texas, argued the
cause for respondents. With him on the brief were Ken
Paxton, Attorney General, Brent Webster, First Assistant
Attorney General, Lanora C. Pettit, Principal Deputy Solici-
tor General, Benjamin D. Wilson, Deputy Solicitor General,
Eric S. Schmitt, Attorney General of Missouri, D. John
Sauer, Solicitor General, and Jesus A. Osete, Deputy Attor-
ney General.*
*Briefs of amici curiae urging reversal were fled for the State of Illi-
nois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor
Notz, Solicitor General, Alex Hemmer, Deputy Solicitor General, and Pri-
yanka Gupta, Assistant Attorney General, by Matthew J. Platkin, Acting
Attorney General of New Jersey, and by the Attorneys General for their
respective jurisdictions as follows: Rob Bonta of California, William Tong
of Connecticut, Kathleen Jennings of Delaware, Karl A. Racine of the
District of Columbia, Holly T. Shikada of Hawaii, Aaron M. Frey of
Maine, Brian E. Frosh of Maryland, Maura Healey of Massachusetts,
Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of
Nevada, Hector Balderas of New Mexico, Letitia James of New York,
Ellen F. Rosenblum of Oregon, Peter F. Neronha of Rhode Island, and
Thomas J. Donovan, Jr., of Vermont; for Bipartisan Former Offcials of
the Department of Homeland Security et al. by Elizabeth B. Wydra and
Brianne J. Gorod; for the Border Project et al. by Stephen J. Brogan and
Victoria Dorfman; for Former Department of Homeland Security Secre-
tary Jeh C. Johnson et al. by Moses Silverman; for Public Citizen by Nan-
dan M. Joshi, Allison M. Zieve, and Scott L. Nelson; for the United States
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790 BIDEN
v. TEXAS
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
In January 2019, the Department of Homeland Security—
under the administration of President Trump—established
the Migrant Protection Protocols. That program provided
for the return to Mexico of non-Mexican aliens who had been
detained attempting to enter the United States illegally from
Mexico. On Inauguration Day 2021, the new administration
Conference of Catholic Bishops et al. by Ethan D. Dettmer and Joshua S.
Lipshutz; for Professor Benjamin Eidelson by Mr. Eidelson, pro se; for 25
Cities et al. by Daniel R. Suvor, Kevin Morrow, Leslie J. Girard, Diana
P. Cortes, Christopher J. Caso, Kristin M. Bronson, Lyndsey M. Olson,
William C. Fosbre, Arturo G. Michel, and Michael Feuer; and for 61 Immi-
gration Advocacy and Legal Service Organizations by Karen C. Tumlin,
Esther H. Sung, Jane Petersen Bentrott, Kelly J. Huggins, Jeffrey T.
Green, Tamara F. Goodlette, and Naomi A. Igra. Kathleen R. Hartnett
and Adam S. Gershenson fled a brief for Administrative Law Professors
as amici curiae urging vacatur.
Briefs of amici curiae urging affrmance were fled for the State of
Indiana et al. by Theodore E. Rokita, Attorney General of Indiana,
Thomas M. Fisher, Solicitor General, Aaron T. Craft, James A. Barta,
Deputy Solicitor General, and Julia C. Payne and Melinda R. Holmes,
Deputy Attorneys General, and by the Attorneys General for their respec-
tive States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska,
Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Ashley Moody
of Florida, Christopher M. Carr of Georgia, Derek Schmidt of Kansas,
Daniel Cameron of Kentucky, Jeff Landry of Louisiana, Lynn Fitch of
Mississippi, Austin Knudsen of Montana, Doug Peterson of Nebraska,
Dave Yost of Ohio, John M. O'Connor of Oklahoma, Alan Wilson of South
Carolina, Sean Reyes of Utah, Jason Miyares of Virginia, and Patrick
Morrisey of West Virginia; for Advancing American Freedom by Matthew
J. Sheehan; for Advocates for Victims of Illegal Alien Crime by Walter S.
Zimolong III; for the America First Legal Foundation by Gene P. Hamil-
ton; for the Center for Immigration Studies by Julie B. Axelrod; for the
Immigration Reform Law Institute by Christopher J. Hajec; and for the
Landmark Legal Foundation by Matthew C. Forys, Michael J. O'Neill, and
Richard P. Hutchison.
Anjan Choudhury, Ahilan Arulanantham, Talia Inlender, and Hiroshi
Motomura fled a brief for the Center for Immigration Law and Policy,
UCLA School of Law, as amicus curiae.
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791
Opinion of the Court
of President Biden announced that the program would be
suspended
the next day, and later that year sought to termi-
nate it. The District Court and the Court of Appeals, how-
ever, held that doing so would violate the Immigration and
Nationality Act, concluding that the return policy was man-
datory so long as illegal entrants were being released into
the United States. The District Court also held that the
attempted rescission of the program was inadequately ex-
plained in violation of the Administrative Procedure Act.
While its appeal was pending, the Government took new ac-
tion to terminate the policy with a more detailed explana-
tion. But the Court of Appeals held that this new action
was not separately reviewable fnal agency action under the
Administrative Procedure Act.
The questions presented are whether the Government's
rescission of the Migrant Protection Protocols violated the
Immigration and Nationality Act and whether the Govern-
ment's second termination of the policy was a valid fnal
agency action.
I
A
On December 20, 2018, then-Secretary of Homeland Secu-
rity Kirstjen Nielsen announced a new program called Re-
main in Mexico, also known as the Migrant Protection Proto-
cols (MPP). MPP was created i n response to an
immigration surge at the country's southern border, and a
resulting “humanitarian and border security crisis” in which
federal immigration offcials were encountering approxi-
mately 2,000 inadmissible aliens each day. 554 F. Supp. 3d
818, 831 (ND Tex. 2021). MPP provided that certain non-
Mexican nationals arriving by land from Mexico would be
returned to Mexico to await the results of their removal pro-
ceedings under 8 U. S. C. § 1229a. On the same day that
Secretary Nielsen announced the program, the Government
of Mexico agreed that it would cooperate in administering it,
on a temporary basis.
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792 BIDEN
v. TEXAS
Opinion of the Court
MPP was implemented pursuant to express congressional
author
ization in the Immigration and Nationality Act (INA),
which provides that “[i]n the case of an alien . . . who is
arriving on land (whether or not at a designated port of ar-
rival) from a foreign territory contiguous to the United
States, the Attorney General may return the alien to that
territory pending a proceeding under section 1229a of this
title.” 66 Stat. 163, as added and amended, 8 U. S. C.
§ 1225(b)(2)(C).
1
Prior to the initiation of MPP, the Depart-
ment of Homeland Security (DHS) and its predecessor
agency had “primarily used [§ 1225(b)(2)(C)] on an ad-hoc
basis to return certain Mexican and Canadian nationals” ar-
riving at ports of entry. App. to Pet. for Cert. 273a, n. 12.
A separate provision of the same section of the INA states
that if “an alien seeking admission is not clearly and beyond
a doubt entitled to be admitted, the alien shall be detained
for a proceedi ng under sec ti on 1229a of th is title. ”
§ 1225(b)(2)(A). Due to consistent and signifcant funding
shortfalls, however, DHS has never had “suffcient detention
capacity to maintain in custody every single person de-
scribed in section 1225.” Id., at 323a. In light of that fact,
the Trump administration chose to implement MPP in part
so that “[c]ertain aliens attempting to enter the U. S. ille-
gally or without documentation, including those who claim
asylum, will no longer be released into the country, where
they often fail to fle an asylum application and/or disappear
before an immigration judge can determine the merits of any
claim.” 554 F. Supp. 3d, at 832.
In January 2019, DHS began implementing MPP, initially
in San Diego, California, then in El Paso, Texas, and Calex-
ico, California, and then nationwide. By December 31, 2020,
DHS had enrolled 68,039 aliens in the program.
1
The provision refers to the Attorney General, but the authority it con-
fers has been transferred to the Secretary of Homeland Security. See
Department of Homeland Security v. Thuraissigiam, 591 U. S. –––, –––,
n. 3 (2020).
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793
Opinion of the Court
Following the change in Presidential administrations, how-
e
ver, the Biden administration sought to terminate the pro-
gram. On January 20, 2021, the Acting Secretary of Home-
land Security wrote that “[e]ffective January 21, 2021, the
Department will suspend new enrollments in [MPP] pending
further review of the program. Aliens who are not already
enrolled in MPP should be processed under other existing
legal authorities.” Id., at 836. President Biden also issued
Executive Order No. 14010, which directed the new Sec-
retary of Homeland Security, Alejandro N. Mayorkas, to
“promptly review and determine whether to terminate or
modify the [MPP] program.” 86 Fed. Reg. 8269 (2021).
On June 1, 2021, Secretary Mayorkas issued a memoran-
dum offcially terminating MPP (the June 1 Memorandum).
In that memorandum, the Secretary noted his determination
“that MPP [d]oes not adequately or sustainably enhance bor-
der management in such a way as to justify the program's
extensive operational burdens and other shortfalls.” App.
to Pet. for Cert. 351a. He also emphasized that, since its
inception, MPP had “played an outsized role in [DHS's] en-
gagement with the Government of Mexico,” given the “sig-
nifcant attention that it draws away from other elements
that necessarily must be more central to the bilateral rela-
tionship.” Id., at 357a. For those and other reasons, the
Secretary announced that he was “by this memorandum ter-
minating the MPP program,” and “direct[ed] DHS personnel
to take all appropriate actions to terminate MPP, including
taking all steps necessary to rescind implementing guidance
and other directives or policy guidance issued to implement
the program.” Id., at 348a–349a.
B
On April 13, 2021, the States of Texas and Missouri (re-
spondents) initiated this lawsuit in the Northern District of
Texas against Secretary Mayorkas and others. Respond-
ents' initial complaint challenged the Acting Secretary's Jan-
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794 BIDEN
v. TEXAS
Opinion of the Court
uary 20 suspension of new enrollments in MPP, but following
the
June 1 Memorandum, they amended their complaint to
challenge the Secretary's June 1 rescission of the entire pro-
gram. The amended complaint asserted that the June 1
Memorandum violated the INA and the Administrative Pro-
cedure Act (APA), 5 U. S. C. § 701 et seq., and sought prelimi-
nary and permanent injunctive relief, declaratory relief, and
vacatur of the rescission pursuant to the APA.
The District Court conducted a one-day bench trial and
entered judgment for respondents. The court frst con-
cluded that terminating MPP would violate the INA. It
reasoned that section 1225 of the INA “provides the govern-
ment two options”: mandatory detention pursuant to section
1225(b)(2)(A) or contiguous-territory return pursuant to sec-
tion 1225(b)(2)(C). 554 F. Supp. 3d, at 852. Because the
Government was unable to meet its detention obligations
under section 1225(b)(2)(A) due to resource constraints, the
court concluded, “terminating MPP necessarily leads to the
systemic violation of Section 1225 as aliens are released into
the United States.” Ibid. Second, the District Court
found that the agency failed to engage in reasoned decision-
making and therefore acted arbitrarily and capriciously in
violation of the APA. Id., at 847–851.
Based on these conclusions, the District Court “vacated
[the June 1 Memorandum] in its entirety and remanded to
DHS for further consideration.” Id., at 857 (boldface and
capitalization omitted). And it imposed a nationwide in-
junction ordering the Government to “enforce and imple-
ment MPP in good faith until such a time as it has been
lawfully rescinded in compliance with the APA and until such
a time as the federal government has suffcient detention
capacity to detain all aliens subject to mandatory detention
under [section 1225] without releasing any aliens because of
a lack of detention resources.” Ibid. (emphasis in original).
The Government appealed and sought a stay of the injunc-
tion, which the District Court and the Court of Appeals each
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795
Opinion of the Court
denied. The Government then applied to this Court for a
st
ay. The Court denied the application, fnding that the
Government “had failed to show a likelihood of success on
the claim that the [June 1 Memorandum] was not arbitrary
and capricious.” 594 U. S. ––– (2021). The Court did not
address the District Court's interpretation of the INA.
The parties proceeded to briefng in the Court of Appeals.
While the Government's appeal was pending, however, Sec-
retary Mayorkas “considered anew whether to maintain, ter-
minate, or modify MPP in various ways.” App. to Pet. for
Cert. 286a. On September 29, 2021, the Secretary publicly
announced his “inten[tion] to issue in the coming weeks a
new memorandum terminating [MPP].” 20 F. 4th 928, 954
(CA5 2021). The Government then moved to hold the ap-
peal in abeyance pending the Secretary's formal decision, but
the Court of Appeals denied the motion.
On October 29, the Secretary released a four-page memo-
randum that again announced the termination of MPP, along
with a 39-page addendum explaining his reasons for doing so
(the October 29 Memoranda). As the Secretary explained,
this new assessment of MPP “examined considerations that
the District Court determined were insuffciently addressed
in the June 1 memo, including claims that MPP discouraged
unlawful border crossings, decreased the fling of non-
meritorious asylum claims, and facilitated more timely relief
for asylum seekers, as well as predictions that termination
of MPP would lead to a border surge, cause [DHS] to fail to
comply with alleged detention obligations under the [INA],
impose undue costs on states, and put a strain on U. S.-
Mexico relations.” App. to Pet. for Cert. 259a–260a.
The Secretary acknowledged what he called “the strongest
argument in favor of retaining MPP: namely, the signifcant
decrease in border encounters following the determination
to implement MPP across the southern border.” Id., at
261a. But he nonetheless concluded that the program's
“benefts do not justify the costs, particularly given the way
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796 BIDEN
v. TEXAS
Opinion of the Court
in which MPP detracts from other regional and domestic
goa
ls, foreign-policy objectives, and domestic policy initia-
tives that better align with this Administration's values.”
Ibid. Finally, the Secretary once again noted that “[e]fforts
to implement MPP have played a particularly outsized role
in diplomatic engagements with Mexico, diverting attention
from more productive efforts to fght transnational criminal
and smuggling networks and address the root causes of mi-
gration.” Id., at 262a.
In light of those conclusions, the Secretary announced that
he was once again “hereby terminating MPP.” Id., at 263a.
He explained that DHS would “continue complying with the
[District Court's] injunction requiring good-faith implemen-
tation and enforcement of MPP.” Id., at 264a. But he
noted that “the termination of MPP” would be “implemented
as soon as practicable after a fnal judicial decision to vacate”
that injunction. Ibid. The Government then moved to va-
cate the injunction on the ground that the October 29 Memo-
randa had superseded the June 1 Memorandum, but the
Court of Appeals denied the motion.
The Court of Appeals instead affrmed the District Court's
judgment in full. With respect to the INA question, the
Court of Appeals agreed with the District Court's analysis
of the relevant provisions. That is, the court explained, sec-
tion 1225(b)(2)(A) “sets forth a general, plainly obligatory
rule: detention for aliens seeking admission,” while section
1225(b)(2)(C) “authorizes contiguous-territory return as an
alternative.” 20 F. 4th, at 996. Accordingly, the Court of
Appeals reasoned, “DHS is violating (A)'s mandate, refusing
to avail itself of (C)'s authorized alternative, and then com-
plaining that it doesn't like its options.” Ibid., n. 18.
The Court of Appeals also held that “[t]he October 29
Memoranda did not constitute a new and separately review-
able `fnal agency action.' ” Id., at 951. The Court of Ap-
peals distinguished “DHS's June 1 decision to terminate
MPP,” which it claimed “had legal effect,” from the June 1

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Opinion of the Court
Memorandum, the October 29 Memoranda, and “any other
subsequent
memos,” which it held “simply explained DHS's
decision.” Ibid. The Court of Appeals then criticized the
Government for proceeding “without a hint of an intention
to put the Termination Decision back on the chopping block
and reth i nk th i ngs, ” and for u lti mately “ just fur ther
defend[ing] what it had previously decided.” Id., at 955.
And the Court of Appeals drew a dichotomy between taking
new agency action and appealing an adverse decision, assert-
ing that “DHS chose not to take a new agency action” but
“instead chose to notice an appeal and defend its Termination
Decision in our court.” Id., at 941.
We granted certiorari, 595 U. S. ––– (2022), and expedited
consideration of this appeal at the Government's request.
II
We begin with jurisdiction. The Government contends
that the injunction the District Court entered was barred by
8 U. S. C. § 1252(f )(1). That provision reads as follows:
“Regardless of the nature of the action or claim or of the
identity of the party or parties bringing the action, no
court (other than the Supreme Court) shall have juris-
diction or authority to enjoin or restrain the operation
of [8 U. S. C. §§ 1221–1232], other than with respect to
the application of such provisions to an individual alien
against whom proceedings under [those provisions] have
been initiated.”
As we recently held in Garland v. Aleman Gonzalez, 596
U. S. 543 (2022), section 1252(f )(1) “generally prohibits lower
courts from entering injunctions that order federal offcials
to take or to refrain from taking actions to enforce, imple-
ment, or otherwise carry out the specifed statutory provi-
sions.” Id., at 550. The District Court's injunction in this
case violated that provision. But that fact simply presents
us with the following question: whether section 1252(f )(1)
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deprives this Court of jurisdiction to reach the merits of an
appea
l, where the lower court entered a form of relief barred
by that provision. See Steel Co. v. Citizens for Better Envi-
ronment, 523 U. S. 83, 95 (1998) (“Every federal appellate
court has an obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under
review, even though the parties are prepared to concede it.”
(internal quotation marks and alterations omitted)).
Absent section 1252(f )(1), the District Court clearly had
federal question jurisdiction over respondents' suit, which
asserted claims arising under two federal statutes, the INA
and the APA. See 28 U. S. C. § 1331 (“The district courts
shall have original jurisdiction of all civil actions arising
under the Constituti on, laws, or treaties of the United
States.”). The question, then, is whether section 1252(f )(1)
strips the lower courts of subject matter jurisdiction over
these claims. The parties agree that the answer to that
question is no, and so do we. That is because section
1252(f )(1) withdraws a district court's “jurisdiction or au-
thority” to grant a particular form of relief. It does not de-
prive the lower courts of all subject matter jurisdiction over
claims brought under sections 1221 through 1232 of the INA.
The text of the provision makes that clear. Section
1252(f )(1) deprives courts of the power to issue a specifc
category of remedies: those that “enjoin or restrain the oper-
ation of ” the relevant sections of the statute. A limitation
on subject matter jurisdiction, by contrast, restricts a court's
“power to adjudicate a case.” United States v. Cotton, 535
U. S. 625, 630 (2002). Section 1252(f )(1) bears no indication
that lower courts lack power to hear any claim brought under
sections 1221 through 1232. If Congress had wanted the
provision to have that effect, it could have said so in words
far simpler than those that it wrote. But Congress instead
provided that lower courts would lack jurisdiction to “enjoin
or restrain the operation of ” the relevant provisions, and it
included that language in a provision whose title—“Limit on
injunctive relief ”—makes clear the narrowness of its scope.
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A second feature of the text of section 1252(f )(1) leaves
no
doubt that this Court has jurisdiction: the parenthetical
explicitly preserving this Court's power to enter injunctive
relief. See § 1252(f )(1) (“[N]o court (other than the Supreme
Court) shall have jurisdiction or authority . . .”). If section
1252(f )(1) deprived lower courts of subject matter jurisdic-
tion to adjudicate any non-individual claims under sections
1221 through 1232, no such claims could ever arrive at this
Court, rendering the provision's specifc carveout for Su-
preme Court injunctive relief nugatory. Indeed, that carve-
out seems directed at precisely the question before us here:
whether section 1252(f )(1)'s “[l]imit on injunctive relief ” has
any consequence for the jurisdiction of this Court. Con-
gress took pains to answer that question in the negative.
Interpreting section 1252(f )(1) to deprive this Court of juris-
diction under these circumstances would therefore fail to
“give effect, if possible, to every clause and word of [the]
statute.” Williams v. Taylor, 529 U. S. 362, 404 (2000).
2
Statutory structure confrms our conclusion. Elsewhere
in section 1252, where Congress intended to deny subject
matter jurisdiction over a particular class of claims, it did so
unambiguously. Section 1252(a)(2), for instance, is entitled
“Matters not subject to judicial review” and provides that
“no court shall have jurisdiction to review” several catego-
ries of decisions, such as “any fnal order of removal against
an alien who is removable by reason of having committed a
criminal offense. . . .” (Emphasis added.) Congress could
easily have added one more item to this list: any action taken
pursuant to sections 1221 through 1232. Or it could have
2
Justice Barrett raises a host of additional questions regarding the
“Supreme Court” parenthetical, post, at 838 (dissenting opinion), and she
faults us for relying on this aspect of the provision without comprehen-
sively “explain[ing] how it would work,” ibid. But we see no need to
explore every aspect or consequence of the parenthetical in order to an-
swer the narrow question of our jurisdiction over this case. In declining
to resolve these additional complexities, we merely heed Justice Bar-
rett's admonition to “tread . . . carefully.” Post, at 840.
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worded section 1252(f )(1) similarly to the immediately adja-
cent
section 1252(g), which provides that “no court shall
have jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action by the Attor-
ney General to commence proceedings, adjudicate cases, or
execute removal orders against [the alien].” (Emphasis
added.) But Congress did neither. Instead, it constructed
a carefully worded provision depriving the lower courts of
power to “enjoin or restrain the operation of ” certain sec-
tions of the statute, and it entitled that provision a “[l]imit
on injunctive relief.”
Our prior cases have already embraced this straightfor-
ward conclusion. Most relevantly, the Court previously en-
countered a virtually identical situation in Nielsen v. Preap,
586 U. S. ––– (2019). There, as here, the plaintiffs sought
declaratory as well as injunctive relief in their complaint, and
there, as here, the District Court awarded only the latter.
Yet this Court proceeded to reach the merits of the suit,
notwithstanding the District Court's apparent violation of
section 1252(f )(1), by reasoning that “[w]hether the [District]
[C]ourt had jurisdiction to enter such an injunction is irrele-
vant because the District Court had jurisdiction to entertain
the plaintiffs' request for declaratory relief.” Id., at ––– –
––– (Alito, J., joined by Roberts, C. J., and Kavanaugh,
J.); see also Jennings v. Rodriguez, 583 U. S. 281, 355 (2018)
(Breyer, J., joined by Ginsburg and Sotomayor, JJ., dis-
senting) (concluding that “a court could order declaratory re-
lief ” notwithstanding section 1252(f )(1)). Our disposition in
Preap is inconsistent with an interpretation of the limitation
in section 1252(f )(1) that strips the lower courts of subject
matter jurisdiction.
3
And previous statements from this
3
Justice Barrett notes that Preap involved consolidated cases, and
that in one of the two cases the District Court granted declaratory as
well as injunctive relief. Post, at 838–839, n. (dissenting opinion). That
misses the point. The Preap District Court granted only injunctive relief,
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Court regarding section 1252(f )(1) are in accord. See Reno
v
. American-Arab Anti-Discrimination Comm., 525 U. S.
471, 481 (1999) (“By its plain terms, and even by its title,
[section 1252(f )(1)] is nothing more or less than a limit on
injunctive relief.”).
In short, we see no basis for the conclusion that section
1252(f )(1) concerns subject matter jurisdiction. It is true
that section 1252(f )(1) uses the phrase “jurisdiction or au-
thority,” rather than simply the word “authority.” But
“[ j]urisdiction . . . is a word of many, too many meanings.”
Steel Co., 523 U. S., at 90. And the question whether a court
has jurisdiction to grant a particular remedy is different
from the question whether it has subject matter jurisdiction
over a particular class of claims. See Reed Elsevier, Inc. v.
Muchnick, 559 U. S. 154, 163–164 (2010) (concluding that
“[t]he word `jurisdiction' . . . says nothing about whether a
federal court has subject-matter jurisdiction to adjudicate
claims”). Section 1252(f )(1) no doubt deprives the lower
courts of “jurisdiction” to grant classwide injunctive relief.
See Aleman Gonzalez, 596 U. S., at 548. But that limitation
poses no obstacle to jurisdiction in this Court.
4
III
We now turn to the merits. Section 1225(b)(2)(C) pro-
vides: “In the case of an alien . . . who is arriving on land . . .
from a foreign territory contiguous to the United States, the
[Secretary] may return the alien to that territory pending
a proceeding under section 1229a.” Section 1225(b)(2)(C)
presenting the exact circumstances we confront here, yet this Court exer-
cised jurisdiction over that lawsuit and resolved it on the merits.
4
At our request, the parties briefed several additional questions regard-
ing the operation of section 1252(f )(1), namely, whether its limitation on
“jurisdiction or authority” is subject to forfeiture and whether that limita-
tion extends to other specifc remedies, such as declaratory relief and relief
under section 706 of the APA. We express no view on those questions.
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plainly confers a discretionary authority to return aliens to
Mexico
during the pendency of their immigration proceed-
ings. This Court has “repeatedly observed” that “the word
`may' clearly connotes discretion.” Opati v. Republic of
Sudan, 590 U. S. –––, ––– (2020) (emphasis in original); see
also, e. g., Weyerhaeuser Co. v. United States Fish and Wild-
life Serv., 586 U. S. –––, ––– (2018); Jama v. Immigration
and Customs Enforcement, 543 U. S. 335, 346 (2005). The
use of the word “may” in section 1225(b)(2)(C) thus makes
clear that contiguous-territory return is a tool that the Sec-
retary “has the authority, but not the duty,” to use. Lopez
v. Davis, 531 U. S. 230, 241 (2001).
Respondents and the Court of Appeals concede this point.
Brief for Respondents 21 (contiguous-territory return is a
“discretionary authority”); 20 F. 4th, at 996, n. 18 (“It's obvi-
ously true that § 1225(b)(2)(C) is discretionary.”). They base
their interpretation instead on section 1225(b)(2)(A), which
provides that, “in the case of an alien who is an applicant for
admission, if the examining immigration offcer determines
that an alien seeking admission is not clearly and beyond
a doubt entitled to be admitted, the alien shall be detained
for a proceeding under section 1229a of this title.” Re-
spondents and the Court of Appeals thus urge an inference
from the statutory structure: Because section 1225(b)(2)(A)
makes detention mandatory, they argue, the otherwise-
discretionary return authority in section 1225(b)(2)(C) be-
comes mandatory when the Secretary violates that deten-
tion mandate.
The problem is that the statute does not say anything like
that. The statute says “may.” And “may” does not just
suggest discretion, it “clearly connotes” it. Opati, 590 U. S.,
at ––– (emphasis in original); see also Jama, 543 U. S., at 346
(“That connotation is particularly apt where, as here, `may'
is used in contraposition to the word `shall.' ”). Congress's
use of the word “may” is therefore inconsistent with re-
spondents' proposed inference from the statutory structure.
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If Congress had intended section 1225(b)(2)(C) to operate as
a
mandatory cure of any noncompliance with the Govern-
ment's detention obligations, it would not have conveyed that
intention through an unspoken inference in confict with the
unambiguous, express term “may.” It would surely instead
have coupled that grant of discretion with some indication of
its sometimes-mandatory nature—perhaps by providing that
the Secretary “may return” certain aliens to Mexico, “unless
the government fails to comply with its detention obliga-
tions, in which case the Secretary must return them.” The
statutory grant of discretion here contains no such caveat,
and we will not rewrite it to include one. See id., at 341
(“We do not lightly assume that Congress has omitted from
its adopted text requirements that it nonetheless intends to
apply.”).
The principal dissent emphasizes that section 1225(b)(2)(A)
requires detention of all aliens that fall within its terms.
See, e. g., post, at 824 (Alito, J., dissenting) (“The language
of 8 U. S. C. § 1225(b)(2)(A) is unequivocal.”). While the
Government contests that proposition, we assume arguendo
for purposes of this opinion that the dissent's interpretation
of section 1225(b)(2)(A) is correct, and that the Government
is currently violating its obligations under that provision.
5
Even so, the dissent's conclusions regarding section
1225(b)(2)(C) do not follow. Under the actual text of the
statute, Justice Alito's interpretation is practically self-
refuting. He emphasizes that “ `[s]hall be detained' means
`shall be detained,' ” post, at 825, and criticizes the Gov-
er nment's “arg ument that `sha l l' means `may, ' ” ib i d.
5
For this reason, Justice Alito misunderstands our analysis in insist-
ing that our opinion authorizes the Government to release aliens subject
to detention under section 1225(b)(2)(A). See post, at 823 (dissenting
opinion). We need not and do not decide whether the detention require-
ment in section 1225(b)(2)(A) is subject to principles of law enforcement
discretion, as the Government argues, or whether the Government's cur-
rent practices simply violate that provision.
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But the theory works both ways. Congress conferred
contig
uous-territory return authority in expressly discre-
tionary terms. “ `[M]ay return the alien' means `may return
the alien.' ” The desire to redress the Government's pur-
ported violation of section 1225(b)(2)(A) does not justify
transforming the nature of the authority conferred by sec-
tion 1225(b)(2)(C).
6
The historical context in which the provision was adopted
confrms the plain import of its text. See, e. g., Niz-Chavez
v. Garland, 593 U. S. –––, ––– (2021) (textual analysis con-
frmed by “a wider look at [the statute's] structure and his-
tory”). Section 1225(b)(2)(C) was not added to the statute
until 1996, in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), § 302, 110 Stat. 300–
583—more than 90 years after the Immigration Act of 1903
added the “shall be detained” language that appears in sec-
tion 1225(b)(2)(A). And section 1225(b)(2)(C) was enacted in
the immediate aftermath of a Board of Immigration Appeals
(BIA) decision that specifcally called into question the legal-
ity of the contiguous-territory return practice. Prior to that
decision, the longstanding practice of the Immigration and
Naturalization Service (INS) had been to require some aliens
arriving at land border ports of entry to await their exclu-
sion proceedings in Canada or Mexico. The BIA noted the
lack of “any evidence that this is a practice known to Con-
6
In arguing that the Court should do so, the dissent proposes a number
of hypotheticals in which a party fails to comply with a legal obligation
imposed by statute and additionally refuses to exercise a discretionary
alternative authorized by that statute. Post, at 828–829 (Alito, J., dis-
senting). We wholeheartedly endorse the conclusion that the dissent
draws from these hypotheticals: that “the failure to make use of the discre-
tionary option would not be seen as a valid excuse for non-compliance with
the command that certain conduct `shall' be performed.” Post, at 829.
But the question before us is not whether the Government is violating the
immigration laws generally. The question is whether the INA requires
the government to continue implementing MPP. And the statutory text
clearly answers that question in the negative.
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gress” and “the absence of a supporting regulation.” In re
Sanch
ez-Avila, 21 I. & N. Dec. 444, 465 (1996) (en banc).
Congress responded mere months later by adding section
1225(b)(2)(C) to IIRIRA and conferring on the Secretary ex-
press authority (“may”) to engage in the very practice that
the BIA had questioned. And INS acknowledged that
clar ificati on shor tly thereaf ter, explaining that secti on
1225(b)(2)(C) and its implementing regulation “simply add[ ]
to [the] statute and regulation a long-standing practice of the
Service.” 62 Fed. Reg. 445 (1997). That modest backstory
suggests a more humble role for section 1225(b)(2)(C) than
as a mandatory “safety valve” for any alien who is not de-
tained under section 1225(b)(2)(A).
In addition to contradicting the statutory text and context,
the novelty of respondents' interpretation bears mention.
Since IIRIRA's enactment 26 years ago, every Presiden-
tial administration has interpreted section 1225(b)(2)(C) as
purely discretionary. Indeed, at the time of IIRIRA's enact-
ment and in the decades since, congressional funding has con-
sistently fallen well short of the amount needed to detain all
land-arriving inadmissible aliens at the border, yet no admin-
istration has ever used section 1225(b)(2)(C) to return all
such aliens that it could not otherwise detain.
And the foreign affairs consequences of mandating the ex-
ercise of contiguous-territory return likewise confrm that
the Court of Appeals erred. Article II of the Constitution
authorizes the Executive to “engag[e] in direct diplomacy
with foreign heads of state and their ministers.” Zivotofsky
v. Kerry, 576 U. S. 1, 14 (2015). Accordingly, the Court has
taken care to avoid “the danger of unwarranted judicial in-
terference in the conduct of foreign policy,” and declined to
“run interference in [the] delicate feld of international rela-
tions” without “the affrmative intention of the Congress
clearly expressed.” Kiobel v. Royal Dutch Petroleum Co.,
569 U. S. 108, 115–116 (2013). That is no less true in the
context of immigration law, where “[t]he dynamic nature of
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relations with other countries requires the Executive Branch
to
ensure that enforcement policies are consistent with this
Nation's foreign policy.” Arizona v. United States, 567 U. S.
387, 397 (2012).
By interpreting section 1225(b)(2)(C) as a mandate, the
Court of Appeals imposed a signifcant burden upon the Ex-
ecutive's ability to conduct diplomatic relations with Mexico.
MPP applies exclusively to non-Mexican nationals who have
arrived at ports of entry that are located “in the United
States.” § 1225(a)(1). The Executive therefore cannot uni-
laterally return these migrants to Mexico. In attempting
to rescind MPP, the Secretary emphasized that “[e]fforts to
implement MPP have played a particularly outsized role in
diplomatic engagements with Mexico, diverting attention
from more productive efforts to fght transnational criminal
and smuggling networks and address the root causes of mi-
gration.” App. to Pet. for Cert. 262a. Yet under the Court
of Appeals' interpretation, section 1225(b)(2)(C) authorized
the District Court to force the Executive to the bargaining
table with Mexico, over a policy that both countries wish to
terminate, and to supervise its continuing negotiations with
Mexico to ensure that they are conducted “in good faith.”
554 F. Supp. 3d, at 857 (emphasis deleted). That stark con-
sequence confrms our conclusion that Congress did not in-
tend section 1225(b)(2)(C) to tie the hands of the Executive
in this manner.
Finally, we note that—as DHS explained in its October 29
Memoranda—the INA expressly authorizes DHS to process
applicants for admission under a third option: parole. See 8
U. S. C. § 1182(d)(5)(A). Every administration, including the
Trump and Biden administrations, has utilized this authority
to some extent. Impor t antly, the author ity is not un-
bounded: DHS may exercise its discretion to parole appli-
cants “only on a case-by-case basis for urgent humanitarian
reasons or signifcant public beneft.” Ibid. And under the
APA, DHS's exercise of discretion within that statutory
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framework must be reasonable and reasonably explained.
See
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). But
the availability of the parole option additionally makes clear
that the Court of Appeals erred in holding that the INA
required the Government to continue implementing MPP.
In sum, the contiguous-territory return authority in sec-
tion 1225(b)(2)(C) is discretionary—and remains discretion-
ary notwithstanding any violation of section 1225(b)(2)(A).
To reiterate: we need not and do not resolve the parties'
arguments regarding whether section 1225(b)(2)(A) must be
read in light of traditional principles of law enforcement dis-
cretion, and whether the Government is lawfully exercising
its parole authorities pursuant to sections 1182(d)(5) and
1226(a). We merely hold that section 1225(b)(2)(C) means
what it says: “may” means “may,” and the INA itself does
not require the Secretary to continue exercising his discre-
tionary authority under these circumstances.
IV
The Court of Appeals also erred in holding that “[t]he Oc-
tober 29 Memoranda did not constitute a new and separately
reviewable `fnal agency action.' ” 20 F. 4th, at 951. To
recap, the Secretary frst attempted to terminate MPP
through the June 1 Memorandum. As the Court of Appeals
correctly held, that constituted fnal agency action. See id.,
at 947 (citing Bennett v. Spear, 520 U. S. 154 (1997)). But
the District Court found that the Secretary's stated grounds
in the June 1 Memorandum were inadequate, and therefore
“vacated” the June 1 Memorandum and “remanded [the mat-
ter] to DHS for further consideration.” 554 F. Supp. 3d,
at 857.
As we explained two Terms ago in Department of Home-
land Security v. Regents of Univ. of Cal., 591 U. S. –––
(2020), upon fnding that the grounds for agency action are
inadequate, “a court may remand for the agency to do one of
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two things.” Id., at –––. “First, the agency can offer `a
fu
ller explanation of the agency's reasoning at the time of
the agency action.' ” Ibid. (emphasis deleted). If it chooses
this route, “the agency may elaborate” on its initial reasons
for taking the action, “but may not provide new ones.” Id.,
at –––. Alternatively, “the agency can `deal with the prob-
lem afresh' by taking new agency action.” Ibid. (quoting
SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) (Chenery
II)). “An agency taking this route is not limited to its prior
reasons.” Regents, 591 U. S., at –––.
Here, perhaps in light of this Court's previous determina-
tion that the Government had “failed to show a likelihood of
success on the claim that the [June 1 Memorandum] was not
arbitrary and capricious,” 594 U. S. –––, the Secretary se-
lected the second option from Regents: He accepted the Dis-
trict Court's vacatur and dealt with the problem afresh.
The October 29 Memoranda made that clear “by its own
terms,” Regents, 591 U. S., at –––, in which the Secretary
stated: “I am hereby terminating MPP. Effective immedi-
ately, I hereby supersede and rescind the June 1 memoran-
dum.” App. to Pet. for Cert. 263a–264a. And consistent
with that approach, the October 29 Memoranda offered sev-
eral “new reasons absent from” the June 1 Memorandum,
Regents, 591 U. S., at –––, including an examination of the
“considerations that the District Court determined were in-
suffciently addressed in the June 1 memo,” App. to Pet. for
Cert. 259a.
The October 29 Memoranda were therefore fnal agency
action for the same reasons that the June 1 Memorandum
was fnal agency action. That is, both the June 1 Memoran-
dum and the October 29 Memoranda, when they were issued,
“mark[ed] the `consummation' of the agency's decisionmaking
process” and resulted in “rights or obligations [being] deter-
mined.” Bennett, 520 U. S., at 178. As the Court of Ap-
peals explained, the June 1 Memorandum “bound DHS staff
by forbidding them to continue the program in any way from
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that moment on.” 20 F. 4th, at 948. That rationale also
appl
ies to the October 29 Memoranda, which were therefore
fnal agency action under the APA.
7
The various rationales offered by respondents and the
Court of Appeals in support of the contrary conclusion lack
merit.
8
First, the Court of Appeals framed the question by
postulating the existence of an agency decision wholly apart
from any “agency statement of general or particular applica-
bility . . . designed to implement” that decision. 5 U. S. C.
§ 551(4); see 20 F. 4th, at 950–951 (“The States are challeng-
ing the Termination Decision—not the June 1 Memoran-
dum, the October 29 Memoranda, or any other memo.”). To
the extent that the Court of Appeals understood itself to
be reviewing an abstract decision apart from specifc agency
action, as defned in the APA, that was error. It was not
the case that the June 1 Memorandum and the October 29
Memoranda “simply explained DHS's decision,” while only
7
Justice Alito contends that the October 29 Memoranda were not fnal
agency action because they did not obligate DHS employees to immedi-
ately cease implementing MPP; instead, they required them to do so “as
soon as practicable after a fnal judicial decision to vacate” the District
Court's injunction. App. to Pet. for Cert. 264a. But as he acknowledges,
the standard for fnal agency action is whether the action “result[ed] in a
fnal determination of `rights or obligations.' ” Post, at 832 (quoting Ben-
nett, 520 U. S., at 178; emphasis added). The fact that the agency could
not cease implementing MPP, as directed by the October 29 Memoranda,
until it obtained vacatur of the District Court's injunction, did not make
the October 29 Memoranda any less the agency's fnal determination of its
employees' obligation to do so once such judicial authorization had been
obtained.
8
One rationale that we do not address at length is the Court of Ap-
peals' extended analogy to the D. C. Circuit's “reopening doctrine.” Re-
spondents do not defend the Court of Appeals' reliance on that doctrine.
In any event, this Court has never adopted it, and the doctrine appears to
be inapposite to the question of fnal agency action. See National Assn.
of Reversionary Property Owners v. Surface Transp. Bd., 158 F. 3d 135,
141 (CADC 1998) (describing the doctrine as an “exception to statutory
limits on the time for seeking review of an agency decision” (alterations
omitted)).
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the decision itself “had legal effect.” Id., at 951. To the
contrary
, the June 1 Memorandum and the October 29 Memo-
randa were themselves the operative agency actions, each of
them an “agency statement . . . designed to implement, inter-
pret, or prescribe law or policy.” 5 U. S. C. § 551(4).
Second, and relatedly, respondents characterized the Octo-
ber 29 Memoranda as post hoc rationalizations of the June 1
Memorandum under our decision in Regents. Brief for Re-
spondents 40 (“[T]he [October 29] Memoranda are nothing
more than improper, post hoc rationalizations for termi-
nating MPP.”); see also 20 F. 4th, at 961 (questioning how
the October 29 Memoranda “[could] be anything more than
post hoc rationalizations of the Termination Decision”). But
Regents involved the exact opposite situation from this one.
There, as here, DHS had attempted to rescind a prior admin-
istration's immigration policy, but a District Court found the
rescission inadequately explained. Faced with the same two
options outlined above, then-Secretary Nielsen elected the
frst option rather than the second. That is, she chose to
“rest on the [original] Memorandum while elaborating on
[her] prior reasoning,” rather than “issue a new rescission
bolstered by new reasons absent from the [original] Memo-
randum.” 591 U. S., at –––. As such, her elaboration “was
limited to the agency's original reasons,” and was “ `viewed
critically' to ensure that the rescission [was] not upheld on
the basis of impermissible `post hoc rationalization.' ” Id.,
at ––– – –––. And because the then-Secretary's reasoning
had “little relationship to that of her predecessor,” the Court
characterized the new explanations as “impermissible
post hoc rationalizations . . . not properly before us.” Id.,
at –––.
The prohibition on post hoc rationalization applies only
when the agency proceeds by the frst option from Regents.
Under that circumstance, because the agency has chosen to
“rest on [its original action] while elaborating on its prior
reasoning,” id., at –––, the bar on post hoc rationalization

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811
Opinion of the Court
operates to ensure that the agency's supplemental explana-
ti
on is anchored to “the grounds that the agency invoked
when it took the action,” Michigan v. EPA, 576 U. S. 743,
758 (2015). By contrast, as noted above, the Secretary here
chose the second option from Regents, and “ `deal[t] with the
problem afresh' by taking new agency action.” 591 U. S.,
at –––. That second option can be more procedurally oner-
ous than the frst—the agency “must comply with the proce-
dural requirements for new agency action”—but the beneft
is that the agency is “not limited to its prior reasons” in
justifying its decision. Ibid. Indeed, the entire purpose of
the October 29 Memoranda was for the Secretary to “issue
a new rescission bolstered by new reasons absent from the
[June 1] Memorandum,” ibid.—reasons that he hoped would
answer the District Court's concerns from the frst go-round.
Having returned to the drawing table and taken new action,
therefore, the Secretary was not subject to the charge of
post hoc rationalization.
Third, respondents invoke our decision in Department of
Commerce v. New York, 588 U. S. ––– (2019), to contend that
DHS's failure to “hew[ ] to the administrative straight and
narrow” deprives the October 29 Memoranda of the pre-
sumption of regularity that normally attends agency action,
Brief for Respondents 43. As we explained in that case, “in
reviewing agency action, a court is ordinarily limited to eval-
uating the agency's contemporaneous explanation in light of
the existing administrative record.” Department of Com-
merce, 588 U. S., at –––. Department of Commerce involved
a “narrow exception to th[at] general rule” that applies
where the challengers to the agency's action make a “strong
showing of bad faith or improper behavior” on the part of
the agency. Id., at ––– (quoti ng Ci t i zen s t o Prese r v e
Overton Park, Inc. v. Volpe, 401 U. S. 402, 420 (1971)). We
held that exception satisfed by an accumulation of “unusual
circumstances” that demonstrated an “explanation for
agency action that [was] incongruent with what the record
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Opinion of the Court
reveal[ed] about the agency's priorities and decisionmaking
process.
” Department of Commerce, 588 U. S., at –––.
The circumstances in this case do not come close to those
in Department of Commerce. Nothing in this record sug-
gests a “signifcant mismatch between the decision the Sec-
retary made and the rationale he provided.” Id., at –––.
Respondents direct us instead to the Government's litigation
conduct. But the examples of misconduct to which respond-
ents refer—such as a failure to timely complete the adminis-
trative record, Brief for Respondents 42—have no bearing
on the legal status of the October 29 Memoranda. And in
any event, they fall well short of the “strong showing of bad
faith or improper behavior,” Overton Park, 401 U. S., at 420,
that we require before deviating from our normal rule that
“[t]he grounds upon which an administrative order must be
judged are those upon which the record discloses that its
action was based,” SEC v. Chenery Corp., 318 U. S. 80, 87
(1943).
The Court of Appeals leveled the related but more modest
charge that the Secretary failed to proceed with a suffciently
open mind. See, e. g., 20 F. 4th, at 955 (agency proceeded
“without a hint of an intention to put the Termination Deci-
sion back on the chopping block and rethink things”). But
the agency's ex ante preference for terminating MPP—like
any other feature of an administration's policy agenda—
should not be held against the October 29 Memoranda. “It
is hardly improper for an agency head to come into offce
with policy preferences and ideas . . . and work with staff
attorneys to substantiate the legal basis for a preferred pol-
icy.” Department of Commerce, 588 U. S., at –––; see also
State Farm, 463 U. S., at 59 (Rehnquist, J., concurring in part
and dissenting in part) (“As long as [an] agency remains
within the bounds established by Congress, it is entitled to
assess administrative records and evaluate priorities in light
of the philosophy of the administration.” (footnote omitted)).
And the critique is particularly weak on these facts. The
Court of Appeals took the agency to task for its September
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813
Opinion of the Court
29 announcement of its “inten[tion] to issue in the coming
weeks
a new memorandum terminating ” MPP. 20 F. 4th,
at 954; see ibid. (“Rather than announcing an intention to
reconsider its Termination Decision, the announcement set
forth DHS's conclusion in unmistakable terms.”). But that
announcement came over six weeks after the District Court's
August 13 remand—a substantial window of time for the
agency to conduct a bona fde reconsideration.
More importantly, this Court has previously rejected criti-
cisms of agency closemindedness based on an identity be-
tween proposed and fnal agency action. See Little Sisters
of the Poor Saints Peter and Paul Home v. Pennsylvania,
591 U. S. –––, ––– (2020) (“declin[ing] to evaluate the
[agency's] fnal rules under [an] open-mindedness test” where
interim and fnal rules were “virtually identical” but proce-
dural requirements were otherwise satisfed). Similar prin-
ciples refute the Court of Appeals' criticism of the October
29 Memoranda for their failure to “alter the Termination De-
cision in any way.” 20 F. 4th, at 946. It is black-letter law
that an agency that takes superseding action on remand is
entitled to “reexamine[ ] the problem, recast its rationale and
reach[ ] the same result.” Chenery II, 332 U. S., at 196; see
also Regents, 591 U. S., at ––– (Kavanaugh, J., concurring in
judgment in part and dissenting in part) (“Courts often con-
sider an agency's . . . additional explanations made . . . on
remand from a court, even if the agency's bottom-line deci-
sion itself does not change.”).
Finally, the Court of Appeals erred to the extent it viewed
the Government's decision to appeal the District Court's in-
junction as relevant to the question of the October 29 Memo-
randa's status as fnal agency action. Nothing prevents an
agency from undertaking new agency action while simulta-
neously appealing an adverse judgment against its original
action. That is particularly so under the circumstances of
this case. The second condition of the District Court's in-
junction, which purported to bind DHS to implement MPP
in perpetuity subject only to congressional funding choices
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Kavanaugh, J., concurring
outside its control, as a practical matter left the Government
no
choice but to appeal. And the agency reasonably chose
to accede to the District Court's APA analysis of the June 1
Memorandum and seek to ameliorate those concerns in the
meantime.
***
For the reasons explained, the Government's rescission of
MPP did not violate section 1225 of the INA, and the October
29 Memoranda did constitute fnal agency action. We there-
fore reverse the judgment of the Court of Appeals and re-
mand the case for further proceedings consistent with this
opinion. On remand, the District Court should consider in
the frst instance whether the October 29 Memoranda comply
with section 706 of the APA. See State Farm, 463 U. S., at
46–57.
It is so ordered.
Justice Kavanaugh, concurring.
I agree with the Court that the District Court had juris-
diction over Texas's suit. I also agree with the Court that
the Government prevails on the merits of the two specifc
legal questions presented here. I note, moreover, that six
Members of the Court agree with the Court's merits conclu-
sion. See post, at 835 (Barrett, J., dissenting).
I write separately to briefy elaborate on my understand-
ing of the relevant statutory provisions and to point out one
legal issue that remains open for resolution on remand.
When the Department of Homeland Security lacks suff-
cient capacity to detain noncitizens at the southern border
pending their immigration proceedings (often asylum pro-
ceedings), the immigration laws afford DHS two primary
options.
Option one: DHS may grant noncitizens parole into the
United States if parole provides a “signifcant public beneft.”
8 U. S. C. § 1182(d)(5)(A). Parole entails releasing individu-
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Kavanaugh, J., concurring
als on a case-by-case basis into the United States subject to
“reasonable
assurances” that they “will appear at all hear-
ings.” 8 CFR § 212.5(d) (2020); see 8 U. S. C. § 1182(d)(5)(A).
Notably, every Administration beginning in the late 1990s
has relied heavily on the parole option, including the admin-
istrations of Presidents Clinton, Bush, Obama, Trump, and
Biden. See Tr. of Oral Arg. 4, 49–54.
Option two: DHS may choose to return noncitizens to Mex-
ico. 8 U. S. C. § 1225(b)(2)(C). Consistent with that statu-
tory authority, the prior Administration chose to return a
relatively small group of noncitizens to Mexico.
In general, when there is insuffcient detention capacity,
both the parole option and the return-to-Mexico option are
legally permissible options under the immigration statutes.
As the recent history illustrates, every President since the
late 1990s has employed the parole option, and President
Trump also employed the return-to-Mexico option for a rela-
tively small group of noncitizens. Because the immigration
statutes afford substantial discretion to the Executive, dif-
ferent Presidents may exercise that discretion differently.
That is Administrative Law 101. See Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile
Ins. Co., 463 U. S. 29, 59 (1983) (Rehnquist, J., concurring in
part and dissenting in part).
To be sure, the Administrative Procedure Act and this
Court's decision in State Farm require that an executive
agency's exercise of discretion be reasonable and reasonably
explained. See id., at 43 (majority opinion); see also FCC v.
Prometheus Radio Project, 592 U. S. –––, ––– – –––, –––
(2021); FCC v. Fox Television Stations, Inc., 556 U. S. 502,
514−515 (2009); 5 U. S. C. § 706. For example, when there
is insuffcient detention capacity and DHS chooses to parole
noncitizens into the United States rather than returning
them to Mexico, DHS must reasonably explain why parole
prov ides a “sig ni ficant publ ic benefit. ” 8 U. S. C.
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Alito, J., dissenting
§ 1182(d)(5)(A); see, e. g., State Farm, 463 U. S., at 46–57.
Re
view under that State Farm standard is deferential but
not toothless. Id., at 56.
The question of whether DHS's October 29 decision satis-
fes the State Farm standard is not before this Court at this
time. The Court today therefore properly leaves the State
Farm issue for consideration on remand. See ante, at 806–
807, 814; Tr. of Oral Arg. 67−68.
To be clear, when there is insuffcient detention capacity
and the President chooses the parole option because he de-
termines that returning noncitizens to Mexico is not feasi-
ble for foreign-policy reasons, a court applying State Farm
must be deferential to the President's Article II foreign-
policy judgment. Cf., e. g., Trump v. Hawaii, 585 U. S.
–––, ––– – ––– (2018). Nothing in the relevant immigration
statutes at issue here suggests that Congress wanted the
Federal Judiciary to improperly second-guess the President's
Article II judgment with respect to American foreign policy
and foreign relations. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635−637 (1952) (Jackson, J., concur-
ring); see also Dames & Moore v. Regan, 453 U. S. 654, 678–
679, 686–688 (1981).
One fnal note: The larger policy story behind this case is
the multi-decade inability of the political branches to provide
DHS with suffcient facilities to detain noncitizens who seek
to enter the United States pending their immigration proceed-
ings. But this Court has authority to address only the legal
issues before us. We do not have authority to end the legisla-
tive stalemate or to resolve the underlying policy problems.
With those additional comments, I join the Court's opinion
in full.
Justice Alito, with whom Justice Thomas and Justice
Gorsuch join, dissenting.
In fscal year 2021, the Border Patrol reported more than
1.7 mi l l i on encounters w ith a l iens a long the Mexican
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817
Alito, J., dissenting
border.
1
W
hen it appears that one of these aliens is not ad-
missible, may the Government simply release the alien in
this country and hope that the alien will show up for the
hearing at which his or her entitlement to remain will be
decided?
Congress has provided a clear answer to that question, and
the answer is no. By law, if an alien is “not clearly and
beyond a doubt entitled to be admitted,” the alien “shall
be detained for a [removal] proceeding.” 8 U. S. C. § 1225(b)
(2)(A) (emphasis added). And if an alien asserts a credible
fear of persecution, he or she “shall be detained for further
consideration of the application for asylum,” § 1225(b)
(1)(B)(ii) (emphasis added). Those requirements, as we have
held, are mandatory. See Jennings v. Rodriguez, 583 U. S.
281, 297 (2018).
Congress offered the Executive two—and only two—alter-
natives to detention. First, if an alien is “arriving on land”
from “a foreign territory contiguous to the United States,”
the Department of Homeland Security (DHS) “may return
the alien to that territory pending a [removal] proceeding.”
§ 1225(b)(2)(C). Second, DHS may release individual aliens
on “parole,” but “only on a case-by-case basis for urgent hu-
manit ar ian reasons or a sig ni ficant publ ic benefit. ”
§ 1182(d)(5)(A).
Due to the huge numbers of aliens who attempt to enter
illegally from Mexico, DHS does not have the capacity to
detain all inadmissible aliens encountered at the border, and
no one suggests that DHS must do the impossible. But
rather than avail itself of Congress's clear statutory alterna-
tive to return inadmissible aliens to Mexico while they await
proceedings in this country, DHS has concluded that it may
forgo that option altogether and instead simply release into
1
U. S. Customs and Border Protec ti on, Southwest Land Border
Encounters, FY Southwest Land Border Encounters by Month (chart)
(May 3, 2022), https://www.cbp.gov/newsroom/stats/southwest-land-border-
encounters (showing 1,734,686 total encounters in fscal year 2021).
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Alito, J., dissenting
this country untold numbers of aliens who are very likely to
be
removed if they show up for their removal hearings.
This practice violates the clear terms of the law, but the
Court looks the other way.
In doing so, the majority commits three main errors.
First, it unnecessarily resolves diffcult jurisdictional ques-
tions on which—due to the Government's litigation tactics—
we have received only hurried briefng and no argument.
Second, when the majority reaches the merits, it contrives a
way to overlook the clear statutory violations that result
from DHS's decision to terminate the use of its contiguous-
territory return authority. Finally, the majority unjustif-
ably faults the Court of Appeals for rejecting the Govern-
ment's last-minute attempt to derail the ordinary appellate
process. I cannot go along with any of this, and I therefore
respectfully dissent.
I
In 2018, a surge of foreign migrants attempted to enter
the United States unlawfully at the United States-Mexico
border, creating a “ `humanitarian and border security cri-
sis.' ” 554 F. Supp. 3d 818, 831 (ND Tex. 2021). Because
existing detention facilities could not house all the people
who were attempting to enter unlawfully, many “illegal
aliens with meritless asylum claims were being released into
the United States,” and many, once released, simply “ `disap-
peared.' ” Ibid. (emphasis deleted). To address this prob-
lem, DHS promulgated the Migrant Protection Protocols
(MPP) in December of that year. See id., at 832. The MPP
program relied on Congress's express grant of authority to
“return” ”alien[s] . . . arriving on land . . . from a foreign
territory contiguous to the United States” “to that territory
pending a proceeding ” to remove them to their countries of
origin. § 1225(b)(2)(C).
2
MPP provided that certain non-
2
That policy was almost immediately enjoined by a Federal District
Court. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (ND Cal.
2019). This Court stayed that injunction. Wol f v. Innovation Law Lab,
589 U. S. ––– (2020).
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Alito, J., dissenting
Mexican nationals arriving at the United States border by
land
from Mexico would be returned to Mexico to await the
results of their removal proceedings. The Mexican Govern-
ment agreed to cooperate and to accept aliens while they
awaited removal.
While the policy was in effect, DHS issued a memorandum
in which it determined that MPP was “an indispensable tool
in addressing the ongoing crisis at the southern border.”
App. 189 (Department of Homeland Security: Assessment of
the Migrant Protection Protocols (Oct. 28, 2019)). It con-
cluded that MPP directly reduced the number of aliens un-
lawfully released into the United States and deterred others
from attempting to cross the border unlawfully in the frst
place. 554 F. Supp. 3d, at 833. DHS found that total border
encounters decreased by 64 percent after MPP was imple-
mented. App. 189. With MPP in place, aliens who lacked
meritorious claims could no longer count on “a free ticket
into the United States,” and as a result, many “voluntarily
return[ed] home.” Id., at 192. MPP also helped DHS proc-
ess meritorious asylum claims “within months,” rather than
leaving asylum applicants “in limbo for years.” Id., at 190.
Hours after his inauguration on January 20, 2021, Presi-
dent Biden issued an Executive Order suspending MPP, and
the effects on the border were immediate. According to the
Government's own data, border “encounters jump[ed] from
75,000 in January 2021,” when MPP was frst suspended, to
about “173,000 in April 2021.” 554 F. Supp. 3d, at 837.
Two States, Texas and Missouri, brought suit under the
Administrative Procedure Act (APA) in April 2021, alleging
that suspending MPP was arbitrary and capricious and vio-
lated the Immigration and Nationality Act (INA). The Dis-
trict Court ordered the Government to fle the administra-
tive record for the January suspension, and on May 31, 2021,
the Government fled a three-line suspension memorandum
as the entire administrative record. See id., at 856, n. 16.
The next day, in a 7-page memo issued by the Secretary,
DHS terminated the already-suspended program.

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The States amended their complaint to challenge the June
ter
mination decision on largely the same grounds that they
had advanced with respect to the January suspension.
After a consolidated preliminary injunction hearing and a
trial on the merits under Federal Rule of Civil Procedure
65(a)(2), the District Court vacated the Government's deci-
sion to rescind MPP and enjoined the Secretary to continue
to implement that policy “in good faith” until all the aliens
in question could be detained or lawfully paroled. Id., at
857. The Government sought a stay of this order, but the
United States Court of Appeals for the Fifth Circuit, while
expediting the Government's appeal, refused to issue a stay.
10 F. 4th 538, 543–561 (2021) (per curiam). The Govern-
ment then sought a stay in this Court, but we denied that
application. 594 U. S. ––– (2021).
On September 29, 2021, while briefng in the Court of Ap-
peals was underway, DHS announced that it intended to
issue a new memorandum terminating MPP, and the Govern-
ment asked the Court of Appeals to hold its appeal in abey-
ance pending this promised administrative action. App. 51–
52. The Court of Appeals denied that motion, id., at 54, and
then, two business days before oral argument, DHS issued
two memoranda declaring that DHS had made a new deci-
sion terminating MPP. See App. to Pet. for Cert. 257a–
345a. At the same time, the Government asked the Court
of Appeals to hold that the case before it was moot, to vacate
the District Court's judgment and injunction, and to remand
the case for further proceedings. 20 F. 4th 928, 946 (CA5
2021). The Fifth Circuit refused and held that the October
29 Memoranda did not moot the appeal or have any other
legal effect on the appellate proceedings. Id., at 956–966,
998–1000. The Fifth Circuit then affrmed the District
Court on the merits.
II
I agree with the majority that the injunction entered by
the District Court in this case exceeded its “jurisdiction or

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Alito, J., dissenting
authority to enjoin or restrain the operation of ” the relevant
st
atutes. § 1252(f )(1). That conclusion follows from a
straightforward analysis of the text of § 1252(f )(1), as recog-
nized by the Court's decision in Garland v. Aleman Gonza-
lez, 596 U. S. 543 (2022). But that is where the majority and
I part ways.
I agree with Justice Barrett that the majority should
not go any further and should not resolve other questions
about § 1252(f )(1) without adequate briefng or argument.
The Government admits that “this Court could in theory va-
cate the judgment below without reaching the merits,” Supp.
Brief for Petitioners 23, but the majority chooses to de-
cide far more than is necessary or advisable under the
circumstances.
As Justice Barrett explains, the interpretation of
§ 1252(f )(1) presents diffcult questions that the parties
should have addressed in the briefs they fled before oral
argument. In its opening brief, the Government's only dis-
cussion of this issue appeared in a footnote that reads as
follows in its entirety:
“In addition, the lower courts lacked jurisdiction to
grant injunctive relief under 8 U. S. C. [§ ]1252(f )(1).
This Court is considering the scope of Section 1252(f )(1)
in Garland v. Aleman Gonzalez, No. 20–322 (argued Jan.
11, 2022).” Brief for Petitioners 18, n. 3.
That footnote's reference to the Government's brief in Gon-
zalez raised an obvious question. Section 1252(f )(1) refers
to orders that “enjoin or restrain the operation of ” specifed
statutory provisions, and in Gonzalez, the Government sug-
gested that this provision should not be interpreted to apply
only to injunctions. Brief for Petitioners 17–19, 32, n. 3, and
Tr. of Oral Arg. 15–16, in Garland v. Aleman Gonzalez, O. T.
2021, No. 20–322. Instead, the Government refused to rule
out the possibility that the provision might also apply to
class-wide declaratory relief, and it analogized § 1252(f )(1) to
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the Tax Injunction Act, 28 U. S. C. § 1341, and cited our deci-
si
on in California v. Grace Brethren Church, 457 U. S. 393
(1982), which interpreted that provision in a “ `practical
sense.' ” Id., at 408.
In the present case, the Government challenged the order
of the District Court “set[ting] aside” under the APA, 5
U. S. C. § 706(2), the June termination of MPP, and since this
order had a practical effect that was in some respects similar
to an injunction, the Government's argument in Gonzalez
raised the question whether the Government thought that
§ 1252(f )(1) also barred the District Court from reviewing
the termination of the MPP under the APA. That is an im-
portant question the resolution of which could have effects
extending far beyond this particular dispute, and at oral ar-
gument the Solicitor General took the far-reaching position
that § 1252(f )(1) does indeed bar APA review. See Tr. of
Oral Arg. 13–14. But none of the papers fled by the Gov-
ernment in this case or in Gonzalez said one word about APA
review. Nor did the respondents' brief. Indeed, their brief
did not discuss jurisdiction at all.
Faced with this situation, the Court was correctly con-
cerned about deciding the reach of § 1252(f )(1) and the impor-
tant APA question without any briefng. The Court could
have—and, in my judgment, should have—dealt with this
problem by deciding this case without saying anything about
§ 1252(f )(1) other than that it bars injunctive relief. Instead,
with the end of the Term looming ahead, the Court directed
the parties to brief these issues, but it gave them just one
week to do so. And as the Court should have anticipated,
those briefs raised new questions that it would have been
useful to explore at argument had that been held. But de-
termined to accommodate the Government's request that
this case be decided this Term, the majority inadvisably
plows ahead.
I would not do so. Because of the Government's request
for a speedy decision, we established an expedited schedule

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823
Alito, J., dissenting
for the fling of merits briefs and squeezed in oral argument
on
the next-to-last argument date. We would have been in
a position to give thorough consideration to the § 1252(f )(1)
issue if it had been addressed in the parties' regular briefs,
but having relegated the issue to a terse footnote in its brief,
and having been unprepared to discuss the issue at argu-
ment, the Government is not entitled to any further special
treatment. We should simply vacate the decision below and
remand for reconsideration in light of our decision in Gonza-
lez.
3
Nothing more is either necessary or appropriate under
the circumstances.
III
The Court is not only wrong to reach the merits of this
case, but its analysis of the merits is seriously fawed. First,
the majority errs in holding that the INA does not really
mean what it says when it commands that the aliens in ques-
tion “shall” be detained pending removal or asylum proceed-
ings unless they are either returned to Mexico or paroled on
a case-by-case basis. According to the majority, it is fne for
DHS simply to release these aliens en masse and allow them
to disappear. Second, the majority improperly faults the
Court of Appeals for refusing to allow the Government to
derail the appellate process by a last-minute maneuver de-
signed to thwart review of the manner in which it initially
terminated MPP.
A
As described above, the INA gives DHS three options re-
garding the treatment of the aliens in question while they
await removal or asylum proceedings. They may be (1) de-
tained in this country or (2) returned to Mexico or (3) paroled
on a case-by-case basis. Congress has provided no fourth
option, but the majority now creates one. According to the
majority, an alien who cannot be detained due to a shortage
3
Alternatively, the Court could have put the case over to next Term,
received full briefng, and heard argument in October.
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Alito, J., dissenting
of detention facilities but could be returned to Mexico may
si
mply be released. That is wrong.
1
The language of 8 U. S. C. § 1225(b)(2)(A) is unequivocal.
With narrow exceptions that are inapplicable here,
4
it pro-
vides that every alien “who is an applicant for admission”
and who “the examining immigration offcer determines . . .
is not clearly and beyond a doubt entitled to be admitted . . .
shall be detained for a [removal] proceeding.” (Emphasis
added.) Six years ago, the Government argued strenuously
that this requirement is mandatory, and its brief could hardly
have been more categorical or emphatic in making this point.
See Brief for Petitioners in Jennings v. Rodriguez, O. T.
2017, No. 15–1204, p. 15 (“Aliens seeking admission who are
not `clearly and beyond a doubt entitled to be admitted' are
statutorily prohibited from physically entering the United
States and must be detained during removal proceedings
. . . , unless the Secretary exercises his discretion to release
them on parole”); id., at 17 (“Unlike the word `may,' which
implies discretion, the word `shall' usually connotes a re-
quirement. And here, the repeated `shall be detained'
clearly means what it says” (internal quotation marks and
citations omitted)).
The Jennings Court correctly accepted that argument,
which was central to our holding. See 583 U. S., at 297
(“Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate
detention of applicants for admission until certain proceed-
ings have concluded”). But now, in an about-face, the Gov-
ernment argues that “shall be detained” actually means
4
Entitled “Exception,” § 1225(b)(2)(B) provides:
“Subparagraph (A) shall not apply to an alien—
“(i) who is a crewman,
“(ii) to whom paragraph (1) applies, or
“(iii) who is a stowaway.”
If anything, the narrowness of the enumerated exceptions demonstrates
the force of the rule: Detention for all others is mandatory.
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825
Alito, J., dissenting
“may be detained.” See Brief for Petitioners 29 (“[T]he
Cour
t will not construe a provision stating that law enforce-
ment `shall' take some action as a `true mandate' absent
`some stronger indication from the . . . Legislature' ”).
The Government was correct in Jennings and is wrong
here. “[S]hall be detained” means “shall be detained.”
The Government points out that it lacks the facilities to de-
tain all the aliens in question, and no one questions that fact.
But use of the contiguous-return authority would at least
reduce the number of aliens who are released in violation of
the INA's command. The District Court made a factual
fnding that rescinding MPP would cause additional viola-
tions of Congress's unambiguous detention mandate. 554
F. Supp. 3d, at 851–852. It also found that “the termination
of MPP has contributed to the current border surge” by giv-
ing aliens the “perverse incentiv[e],” id., at 837, App. 196, to
cross the border illegally in hopes of being paroled and re-
leased. Id., at 79. Thus, the Government is failing to meet
the statutory detention mandate, not only because of limita-
tions on its detention capacity but also because it refuses to
use the contiguous-territory return authority.
Other than the argument that “shall” means “may,” the
Government's only other textual argument is that it is parol-
ing aliens “on a case-by-case basis for urgent humanitarian
reasons or signifcant public beneft,” as permitted under
§ 1182(d)(5)(A). But the number of aliens paroled each
month under that provision—more than 27,000 in April of
this year
5
—gives rise to a strong inference that the Govern-
5
See, e. g., Defendants' Monthly Report for April 2022 in No. 2:21–cv–
67, ECF Doc. 139, p. 4 (ND Tex., May 16, 2022) (“For the month of April
2022, DHS reported that the total number of applicants for admission
under Section 1225 paroled into the United States was 91,250. This fgure
combines 88,452 [Customs and Border Patrol] grants of parole . . . and
27,654 individuals . . . `[p]aroled into the U. S. on a case-by-case basis pur-
suant to 8 U. S. C. § 1182(d)(5)' ”); see also Defendants' Monthly Report for
March 2022, ECF Doc. 136, p. 3.
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Alito, J., dissenting
ment is not really making these decisions on a case-by-case
basis.
The Government argues that respondents had the
burden to show that it is not making case-by-case determina-
tions and that they have not met that burden, see Brief for
Petitioners 34, but information about the true nature of these
proceedings is in the Government's possession, and it has
revealed little about what actually takes place. At argu-
ment, however, the Solicitor General argued that the case-
by-case determination requirement can be met simply by
going through a brief checklist for each alien. See Tr. of
Oral Arg. 58–60. Even the rudimentary step of verifying
that an alien does not have a criminal record is not per-
formed in every case. Id., at 31. Such procedures are
inconsistent with the ordinary meaning of “case-by-case”
review, and as the Court of Appeals pointed out, the
circumstances under which § 1182(d)(5)(B)) was adopted bol-
ster that conclusion. See 20 F. 4th, at 947 (After “the execu-
tive branch on multiple occasions purported to use the parole
power to bring in large groups of immigrants,” “Congress
twice amended 8 U. S. C. § 1182(d)(5) to limit the scope of the
parole power and prevent the executive branch from using
it as a programmatic policy tool” (citing T. Aleinikoff et al.,
Immigration and Citizenship: Process and Policy 300 (9th
ed. 2021))).
The majority claims that the Government's use of its pa-
role authority under § 1182(d)(5)(A) is not before us, ante, at
807, but the Government cites that authority as a reason why
it does not need to use its contiguous-territory return au-
thority. Brief for Petitioners 6, 33–36. Moreover, the Dis-
trict Court's judgment relied on factual fndings regarding
DHS's abuse of its parole authority on the record that the
Government provided. 554 F. Supp. 3d, at 837.
For these reasons, § 1182(d)(5)(A) cannot justify the re-
lease of tens of thousands of apparently inadmissible aliens
each month, and that leaves the Government with only one
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827
Alito, J., dissenting
lawful option: continue to return inadmissible aliens to Mex-
ico
. See § 1225(b)(2)(C).
2
The majority's chief defense of the Government's rejection
of MPP is based on a blinkered method of statutory interpre-
tation that we have frmly rejected. The majority largely
ignores the mandatory detention requirement imposed by
§ 1225(b)(2)(A) and, instead, reads the contiguous-return pro-
vision, § 1225(b)(2)(C), in isolation. That provision says that
the Secretary “may” return aliens to the country from which
they entered, not that the Secretary must do so, and for the
majority, that is enough to show that use of that authority is
not required.
That reading ignores “the statutory structure” of the INA,
ante, at 802, and wrongly “confne[s] itself to examining a
particular statutory provision in isolation.” FDA v.
Brown & Williamson Tobacco Corp., 529 U. S. 120, 132
(2000). We have an obligation to read the INA as a “coher-
ent regulatory scheme.” Gustafson v. Alloyd Co., 513 U. S.
561, 569 (1995); see also FTC v. Mandel Brothers, Inc., 359
U. S. 385, 389 (1959); Epic Systems Corp. v. Lewis, 584 U. S.
–––, ––– (2018); A. Scalia & G. Garner, Reading Law 180
(2012) (describing the “harmonious-reading canon”). And if
we follow that canon, the majority's interpretation collapses.
Read as a whole, the INA gives DHS discretion to choose
from among only three options for handling the relevant cat-
egory of inadmissible aliens. The Government must either:
(1) detain them, (2) return them to a contiguous foreign na-
tion, or (3) parole them into the United States on an individ-
ualized, case-by-case basis. These options operate in a
hydraulic relationship: When it is not possible for the Govern-
ment to comply with the statutory mandate to detain inad-
missible aliens pending further proceedings, it must resort to
one or both of the other two options in order to comply with
the detention requirement to the greatest extent possible.
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v. TEXAS
Alito, J., dissenting
There is nothing strange about this interpretation of how
the
relevant provisions of the INA work together. Consider
this example. Suppose a state law provides that every
school district “shall” provide a free public education to
every student from kindergarten through the 12th grade and
that another statute says that a district “may” arrange for
its students to attend high school in an adjacent district. A
small district refuses to operate its own high school because
it lacks the necessary funds, and this district also declines to
arrange for its students to attend a school in an adjacent
district because the law says only that a district “may” take
that course of action. Refusing to exercise this discretion-
ary authority, the district throws up its hands and says to its
high school students: “We're sorry. If you want to go to
high school, you will have to make your own arrangements
and foot the bill.” If those students sue, would any court
sustain what the district did?
Other examples come readily to mind. Suppose that a
building code says that every multi-unit residential building
“shall” have at least two means of egress from upper foors,
and suppose that another provision says that such a building
“may” have an external fre escape. The owner of such a
building refuses to construct a second internal stairway be-
cause the cost would be prohibitive and also declines to in-
stall a fre escape because the law says that option is discre-
tionary. Would the owner's non-compliance be permitted?
Here is one more example. A State that operates its own
motor vehicle inspection facilities has a law that says that
every vehicle “shall” be inspected every year. The law also
says that motorists “may” have their vehicles inspected at
a licensed private garage. A motorist fails to have his car
inspected because he must work during the time when the
state facility is open and would be fred if he took time off.
This motorist also declines to have his car inspected at a
private garage that is open during his off hours because the
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829
Alito, J., dissenting
law says only that he “may” use such a facility. Would the
motor
ist escape a citation?
The answer in each of the above examples is that the fail-
ure to make use of the discretionary option would not be
seen as a valid excuse for non-compliance with the command
that certain conduct “shall” be performed, and it is also hard
to see the difference between those examples and the situa-
tion here.
3
The majority's main reason for rejecting the argument just
described is that the contiguous-return provision does not
say expressly that it was meant to “operate as a mandatory
cure of any noncompliance with the Government's detention
obligations.” Ante, at 803. But what logic compels need
not be stated expressly.
The majority also relies on the fact that the contiguous-
return provision was enacted 90 years after the provision
requiring detention and the fact that the circumstances
under which the contiguous-return provision was adopted
suggest that it was intended to serve only a “humble role.”
Ante, at 805. Those circumstances cannot change what the
relevant provisions say or the way in which they logically
work together. See Exxon Mobil Corp. v. Allapattah Serv-
ices, Inc., 545 U. S. 546, 568 (2005) (“Extrinsic materials have
a role in statutory interpretation only to the extent they
shed a reliable light on the enacting Legislature's under-
standing of otherwise ambiguous terms”). The Court
should not use extra-textual evidence to demote one of
DHS's three lawful alternatives to the status of a historical
footnote.
The majority and the concurrence fault the lower courts for
intruding upon the foreign policy authority conferred on the
President by Article II of the Constitution. Ante, at 805–806
(majority opinion); ante, at 816 (opinion of Kavanaugh, J.).
But enforcement of immigration laws often has foreign rela-
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830 BIDEN
v. TEXAS
Alito, J., dissenting
tions implications, and the Constitution gives Congress
broad
authority to set immigration policy. See Art. I, § 8,
cl. 4. This means, we have said, that “[p]olicies pertaining
to the entry of aliens” are “entrusted exclusively to Con-
gress.” Galvan v. Press, 347 U. S. 522, 531 (1954) (emphasis
added). The President has vital power in the feld of foreign
affairs, so does Congress, and the President does not have
the authority to override immigration laws enacted by Con-
gress. Indeed, “[w]hen the President takes measures in-
compatible with the expressed or implied will of Congress,
his power is at its lowest ebb, for then he can rely only upon
his own constitutional powers minus any constitutional pow-
ers of Congress over the matter.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J.,
concurring). And it is Congress, not the Judiciary, that gave
the Executive only three options for dealing with inadmissi-
ble aliens encountered at the border.
Finally, the majority emphasizes the fact that prior admin-
istrations have also failed to detain inadmissible aliens, but
that practice does not change what the law demands. The
majority cites no authority for the doctrine that the Execu-
tive can acquire authority forbidden by law through a proc-
ess akin to adverse possession.
B
Not only does the majority fail to heed the clear language
of the INA, but it gratuitously faults the Court of Appeals
for what appears to be a fairly modest and correct conclusion:
that the October 29 Memoranda purporting to re-terminate
MPP did not ultimately affect the merits of the appeal of
the judgment that was before that court. The Government
issued its October 29 Memoranda after briefng in the Court
of Appeals had been completed and only days before the ap-
peal was set to be argued. Based on those memoranda, the
Government asked the Court of Appeals to vacate the judg-
ment below, but it did not provide a full administrative rec-

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831
Alito, J., dissenting
ord or give the District Court an opportunity to review the
pur
ported new decision in the frst instance by fling a Rule
60(b) motion.
6
The majority now says that the Court of Ap-
peals erred by failing to treat the October 29 Memoranda as
a new, fnal agency action, but the majority does not say
what applying that label would have required the Fifth Cir-
cuit to do differently.
As I see it, the Government's litigation tactic—fling the
October 29 Memoranda with a suggestion of mootness but
without seeking to dismiss its appeal—could have triggered
one of four responses from the Court of Appeals. The Court
of Appeals could have (1) dismissed the appeal as moot and
vacated the District Court's judgment and injunction; (2)
held the appeal in abeyance for an unspecifed time; (3) evalu-
ated the October 29 Memoranda as fnal agency action in the
frst instance under the APA; or (4) concluded that the Octo-
ber 29 Memoranda did not affect the appeal, which chal-
lenged the June termination. The Court of Appeals picked
the fourth option, and taking each option in turn, I will ex-
plain why that was the response best suited to avoid derail-
ing the ordinary appellate process.
First, the October 29 Memoranda did not moot the appeal.
A case becomes moot only if it is impossible for the court to
“ `grant any effectual relief.' ” Chafn v. Chafn, 568 U. S.
165, 172 (2013). Under this high standard, the Fifth Circuit
was correct that the case was not moot. Although the Gov-
ernment claimed that the appeal was moot, it asked the
Court of Appeals for relief, namely, vacatur of District
Court's injunction. It was compelled to take that position
because the October 29 Memoranda, by their own terms, did
not take effect as long as that injunction remained in force.
See 20 F. 4th, at 957. And without an appellate decision
holding that the INA allows the Government to release
aliens who could be returned to Mexico, the issuance of a new
6
See generally 11A C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure § 2961 (3d ed. 2013).

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832 BIDEN
v. TEXAS
Alito, J., dissenting
administrative order terminating MPP could not provide a
ground
for vacating the injunction. It is telling that the
Government's briefng in this Court never suggests that the
case was moot at the time of the Fifth Circuit's decision or
that the case is now moot.
Second, the Court of Appeals did not err by declining to
hold the appeal in abeyance. The Government originally
asked the Court of Appeals to hold the appeal while it com-
pleted the process of issuing a new termination decision, but
by the time of oral argument in that court, the Government
claimed that such a decision had been issued. And the Gov-
ernment did not fle a motion in the District Court to vacate
its judgment under Federal Rule of Civil Procedure 60(b).
The Government had sought to expedite proceedings at
every stage, including by seeking emergency relief in the
Fifth Circuit and this Court, and under these circumstances,
it was eminently reasonable for the Court of Appeals to con-
clude that additional delay would not have served the inter-
ests of “economy of time and effort.” Landis v. North
American Co., 299 U. S. 248, 254 (1936).
Third, the Court of Appeals correctly concluded that the
October 29 Memoranda could not satisfy our criteria for a
fnal agency action that could be reviewed in the frst in-
stance in the Court of Appeals under the APA. Like this
Court, the courts of appeal are courts of “ `review, and not
frst view.' ” City of Austin v. Reagan Nat. Advertising of
Austin, LLC, 596 U. S. 61, 76 (2022) (quoting Zivotofsky v.
Clinton, 566 U. S. 189, 201 (2012)). With no administrative
record for the October 29 Memoranda before it, the Court of
Appeals was in a poor position to assess whether the memo-
randa actually “mark[ed] the consummation of the agency's
decisionmaking process,” Bennett v. Spear, 520 U. S. 154, 178
(1997) (internal quotation marks omitted). Moreover, the
October 29 Memoranda did not purport to result in a fnal
determination of “ `rights or obligations.' ” Ibid. As DHS
acknowledged, “the termination of MPP” could not “be im-

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833
Alito, J., dissenting
plemented” until there was “a fnal judicial decision to vacate
the
. . . injunction.” App. to Pet. for Cert. 264a, 270a. And
until that was accomplished, the memoranda did not impose
on DHS offcers or employees any “ `obligatio[n]' ” to cease
implementation of MPP. Bennett, 520 U. S., at 178. On this
basis, the Fifth Circuit rightly understood that the October
29 Memoranda could have no legal effect while DHS was
bound by an injunction to implement MPP in good faith and
that this injunction would remain in force unless the Govern-
ment's challenge to the June termination was decided in its
favor.
7
Even if the Fifth Circuit had somehow concluded that the
October 29 Memoranda constituted fnal agency action with
some future legal consequences, the Court does not explain
what the Fifth Circuit should have done differently in the
circumstances it faced. The Fifth Circuit had little ability
to review whether the agency had acted reasonably. See
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
7
The majority concludes that the October 29 Memoranda had legal con-
sequences because they represented DHS's “fnal determination of its em-
ployees' obligation” to terminate MPP, even if that “ `determination' ”
could not generate any obligations until the agency “obtained vacatur of
the District Court's injunction.” Ante, at 809, n. 7 (emphasis deleted).
This expansive, formalist approach to the second Bennett factor is at odds
with the usual “ `pragmatic' approach we have long taken to fnality.”
Army Corps of Engineers v. Hawkes Co., 578 U. S. 590, 599 (2016) (quoting
Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). “To determine
when an agency action is fnal, we have looked to, among other things,
whether its impact `is suffciently direct and immediate' and has a `direct
effect on . . . day-to-day business.' ” Franklin v. Massachusetts, 505 U. S.
788, 796–797 (1992) (quoting Abbott Laboratories, 387 U. S., at 152). By
their own terms, as the majority acknowledges, the October 29 Memo-
randa had no direct or immediate effect on the day-to-day business of DHS
employees. To conclude that such future agency intentions may never-
theless meet the formal defnition of fnal agency action may result in
many agencies facing judicial scrutiny over interim rules, guidance docu-
ments, letters, and informal opinions that may not bind anyone now or
even later.
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v. TEXAS
Alito, J., dissenting
Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). And
the
Fifth Circuit provided a reasonable explanation for its
actions.
With these three options off the table, the Fifth Circuit
reasonably chose the fourth option. It correctly concluded
that the October 29 Memoranda did not affect its ability to
review the District Court judgment. To fnd fault with pro-
ceeding in that fashion, the majority seems to assume that an
administrative agency may obviate a district court decision
setting aside agency action under § 706 of the APA by purs-
ing the following course of conduct: frst, appeal the district
court decision; second, take a purportedly “new” action that
achieves the same result as the one previously set aside; and
third, while declining to seek vacatur of the earlier judgment
in the district court, ask the court of appeals to vacate that
judgment without reviewing its correctness or the lawful-
ness of the second action. The Court of Appeals was correct
to view this as an effort to thwart the normal appellate
process.
***
While I would affrm the Fifth Circuit if we reached the
merits, I agree with the majority that the District Court
on remand should consider in the frst instance whether the
October 29 Memoranda complied with § 706 of the APA.
The District Court should assess, among other things,
whether it is “arbitrary and capricious” for DHS to refuse to
use its contiguous-territory return authority to avoid viola-
tions of the statute's clear detention mandate; whether the
deterrent effect that DHS found MPP produced in reducing
dangerous attempted illegal border crossings, as well as
MPP's reduction of unmeritorious asylum claims, is ade-
quately accounted for in the agency's new decision; and
whether DHS's rescission of MPP is causing it to make pa-
role decisions on an unlawful categorical basis rather than
case-by-case, as the statute prescribes.
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835
Barrett, J., dissenting
Justice Barrett, with whom Justice Thomas, Justice
Alito
, and Justice Gorsuch join as to all but the frst sen-
tence, dissenting.
I agree with the Court's analysis of the merits—but not
with its decision to reach them. The lower courts in this
case concluded that 8 U. S. C. § 1252(f )(1), a provision of the
Immigration and Nationality Act sharply limiting federal
courts' “jurisdiction or authority to enjoin or restrain the
operation of ” certain immigration laws, did not present a
jurisdictional bar. Just two weeks ago, however, we repudi-
ated their reasoning in Garland v. Aleman Gonzalez, 596
U. S. 543 (2022). Because we are a court of review and not
frst view, I would vacate and remand for the lower courts
to reconsider their assertion of jurisdiction in light of Ale-
man Gonzalez.
***
Section 1252(f )(1) provides that “no court (other than the
Supreme Court) shall have jurisdiction or authority to enjoin
or restrain the operation of ” specifed immigration provi-
sions, except as applied to “an individual alien against whom
proceedings under [those provisions] have been initiated.”
Some lower courts have narrowly interpreted this provision,
holding that it does not bar relief that a plaintiff frames as
“requir[ing]” (rather than preventing) the Government's en-
forcement of or compliance with the covered immigration
laws. E. g., 20 F. 4th 928, 1004 (CA5 2021). In this case,
that was the only ground pressed by respondents below and
relied on by the lower courts to hold that § 1252(f )(1) did not
“ba[r] jurisdiction.” Ibid.; see App. to Pet. for Cert. 184a;
Brief for Appellees in No. 21–10806 (CA5), pp. 40–41. But
we just rejected this interpretation in Aleman Gonzalez.
There, we held that § 1252(f )(1) deprives lower courts of “ju-
risdiction to entertain” requests for “injunctions that order
federal offcials to take or to refrain from taking actions to
enforce, implement, or otherwise carry out the specifed stat-
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836 BIDEN
v. TEXAS
Barrett, J., dissenting
utory provisions” (subject to an exception, indisputably inap-
pl
icable to this case, for a suit by an individual noncitizen in
proceedings under those provisions). 596 U. S., at 550, 554.
In the normal course, we would vacate and remand this
case for further proceedings in light of Aleman Gonzalez.
Instead, the Court plows ahead to break new jurisdictional
ground. Acting on a compressed timeline, it embraces a
theory of § 1252(f )(1) that—so far as I can tell—no court of
appeals has ever adopted: that § 1252(f )(1) limits only the
lower courts' remedial authority, not their subject-matter ju-
risdiction. The only court of appeals to have addressed this
theory rejected it. Miranda v. Garland, 34 F. 4th 338, 354–
356 (CA4 2022). Still, the Court is confdent enough to pro-
ceed based on short, barely adversarial supplemental briefs.
(The United States' original brief devoted only a conclusory
footnote to the jurisdictional question, and Texas and Mis-
souri did not respond.) And these supplemental briefs are
particularly unhelpful because, having been submitted prior
to our decision in Aleman Gonzalez, they could not address
that decision's signifcance for this case. In fact, they de-
voted a considerable portion of their allotted length to the
issue that Aleman Gonzalez subsequently resolved.
This would all matter less if the jurisdictional question
were easy or unimportant—but it is neither. The Court's
opinion papers over diffcult issues, as I will discuss below,
and its jurisdictional holding is likely to affect many cases.
See, e. g., Texas v. Biden, 589 F. Supp. 3d 595, 616–617 (ND
Tex., 2022) (§ 1252(f )(1) does not bar Texas' claim that
the Federal Government is wrongly refusing to detain
noncitizens to determine if they have COVID–19); Defend-
ants' Opposition to Plaintiffs' Motion for Temporary Re-
straining Order 8–9 in Arizona v. CDC, Civ. No. 6:22–cv–
00885 (WD La., Apr. 22, 2022) (arguing that § 1252(f )(1)
prohibits a district court from constraining the Federal Gov-
ernment's removal discretion in litigation challenging termi-
nation of Title 42 order). We should not short circuit the
ordinary process.
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Barrett, J., dissenting
I have several doubts about the Court's analysis of
§
1252(f )(1). To begin with, the Court assumes that we face
an either/or choice between subject-matter jurisdiction and
remedial authority, with the former being only about a
court's authority to decide merits questions and the latter
being only about the relief a court can grant. Ante, at 798.
This dichotomy makes the Court's job easier, because it can
use the obvious point that § 1252(f )(1) strips lower courts of
remedial authority to establish that § 1252(f )(1) does not
strip them of subject-matter jurisdiction. But why is it a
binary choice? I would think that Congress is free to link a
court's subject-matter jurisdiction to its remedial authority.
That is not so different from an amount-in-controversy re-
quirement, which conditions a district court's ability to ad-
dress the merits on the relief that the plaintiff seeks. See,
e. g., 28 U. S. C. § 1332 (district courts have subject-matter
jurisdiction over diversity cases only when the amount in
controversy exceeds $75,000). And the redressability re-
quirement of Article III itself establishes a tie between juris-
diction and remedies, because a court's inability to order ef-
fective relief deprives it of jurisdiction to decide the merits
of a question otherwise within its competence. See, e. g.,
California v. Texas, 593 U. S. –––, ––– (2021) (redressability
“consider[s] the relationship between `the judicial relief re-
quested' and the `injury' suffered”); Los Angeles v. Lyons,
461 U. S. 95, 105–107 (1983) (failure to allege suffcient likeli-
hood of future injury deprives a federal court of Article III
“jurisdiction to entertain [the count] of the complaint” seek-
ing injunctive relief ).
So it seems to me quite possible that § 1252(f )(1) with-
draws subject-matter jurisdiction over cases seeking certain
remedies. Indeed, while the Government has a theory for
why the Court can reach the merits in this case, it character-
izes § 1252(f )(1) as imposing “jurisdictional limitations” that
“speak to `a court's power' ” and “ `can never be forfeited or
waived.' ” Supplemental Brief for Petitioners 19–20; see
also Miranda, 34 F. 4th, at 354 (concluding that Ҥ 1252(f )(1)
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Barrett, J., dissenting
is a jurisdiction-stripping statute” that cannot be waived).
If
there is a reason to treat limitations on subject-matter
jurisdiction and limitations on remedial authority as mutu-
a l ly exclusive — either i n genera l or i n th is st atutory
scheme—the Court does not explain it.
The Court breezes past other questions too. Most nota-
bly, it gives surprisingly little attention to a phrase on which
it places signifcant weight: § 1252(f )(1)'s parenthetical ex-
empting “the Supreme Court” from its general bar on “juris-
diction or authority.” The parties hardly discuss this paren-
thetica l, wh ich does not appear to have an ana log ue
elsewhere in the United States Code. The Court, however,
takes the phrase as conclusive evidence that § 1252(f )(1) does
not deprive district courts of subject-matter jurisdiction
over “non-individual claims under [the covered provisions],”
because if it did, “no such claims could ever arrive at this
Court, rendering the provision's specifc carveout for Su-
preme Court injunctive relief nugatory.” Ante, at 799.
While this interpretation has some surface appeal, the
Court does not explain how it would work. Does it mean
that the restriction on remedial authority is subject to
waiver or forfeiture, so that a lower court can sometimes
properly enter non-individual injunctive relief that this
Court can then review? That a district court has the au-
thority to enter some kinds of non-individual relief (for ex-
ample, a classwide declaratory judgment) and that this Court
can enter different relief (for example, a classwide injunc-
tion) on review of that judgment? Or that this Court can
enter an injunction on appeal if the district court could have
entered at least one form of relief, even if it actually entered
only relief that exceeded its authority? * Or perhaps the
*For instance, in this case, the States sought declaratory relief, injunc-
tive relief, and vacatur of the Government's termination of the Migrant
Protection Protocols, but the District Court expressly entered only the
latter two. If the District Court could have issued a declaratory judg-
ment, perhaps this Court could exercise appellate jurisdiction even if the
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Cite
as: 597 U. S. 785 (2022)
839
Barrett, J., dissenting
parenthetical serves the very different purpose of clarifying
that
§ 1252(f )(1) does not disturb any pre-existing authority
this Court has under the All Writs Act or other sources.
These are diffcult questions, yet the Court does not address
any of them.
Indeed, the Court explicitly chooses not to opine on some
of the issues that might help explain the parenthetical's un-
usual reservation. See ante, at 801, n. 4. For example, the
Court declines to decide whether the bar in § 1252(f )(1) is
subject to forfeiture, even though that is a defning feature of
nonjurisdictional rules. See, e. g., Hamer v. Neighborhood
Housing Servs. of Chicago, 583 U. S. 17, 19–20 (2017). It
reserves the question whether § 1252(f )(1) bars declaratory
relief, an issue on which there are conficting views. Com-
pare Alli v. Decker, 650 F. 3d 1007, 1013 (CA3 2011) (it does
not bar declaratory relief ), with id., at 1019–1021 (Fuentes,
J., dissenting) (it does), with Hamama v. Adducci, 912 F. 3d
869, 880, n. 8 (CA6 2018) (it depends). And it avoids a posi-
tion on whether § 1252(f )(1) prevents a lower court from va-
cating or setting aside an agency action under the Adminis-
trative Procedure Act. See 5 U. S. C. § 706(2). Not that I
fault the Court for holding back. Quite the contrary: The
questions surrounding § 1252(f )(1) are complex and deserve
more attention than we can give them in this posture.
As a fnal touch, the Court asserts that our precedent has
already charted this course. Ante, at 800–801. But the
District Court lacked authority to issue an injunction or vacatur. The
Court suggests that this happened in Nielsen v. Preap, 586 U. S. –––
(2019), in which, it says, the District Court also awarded only injunctive
relief. Ante, at 800. But the issue is more complicated than the Court
lets on. Preap involved consolidated cases. In the frst, the plaintiffs
sought declaratory and injunctive relief, but the District Court entered
only the latter. See Preap v. Johnson, 303 F. R. D. 566, 587 (ND Cal.
2014). In the second, however, the District Court entered “only [a] de-
claratory ruling,” with no accompanying injunction. Khoury v. Asher, 3
F. Supp. 3d 877, 892 (WD Wash. 2014). So unlike today's case, Preap did
not involve only a hypothetical declaratory judgment.

840 BIDEN
v. TEXAS
Barrett, J., dissenting
Court cannot muster much on that front. It cites a passing
st
atement rejecting an inapposite argument that § 1252(f )(1)
is a jurisdictional grant, see Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 481 (1999), a brief dis-
cussion from a plurality opinion in a case where the
§ 1252(f )(1) issue had not been briefed or argued by the par-
ties in this Court, see Nielsen v. Preap, 586 U. S. –––, ––– –
––– (2019), and a dissent, see Jennings v. Rodriguez, 583 U. S
281, 355 (2018) (opinion of Breyer, J.). None provides a
clear roadmap for this case.
***
Given all this, I would tread more carefully. We should
let the lower courts be the frst to address the substantial
antecedent questions that § 1252(f )(1) presents in light of our
hot-off-the-presses decision in Aleman Gonzalez. I respect-
fully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 805, line 9: “to the” is replaced with “to [the]”
p. 808, line 4 from bottom: “and obligations” is replaced with “or
obligations”
p. 829, line 11 from bottom: “that” is deleted